R v K, GA - [2019] SASCFC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v K, GA
[2019] SASCFC 2
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Parker)
18 January 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES
EVIDENCE - WITNESSES - SWEARING AND OATHS - CAPACITY IN GENERAL - YOUNG CHILDREN
Appeal against conviction.
The applicant was found guilty following trial by judge alone of one count of persistent sexual exploitation of a child and not guilty of a second count of aggravated communicating for a prurient purpose with the intention of making a child amenable to sexual activity.
When the complainant was six and a half years old she was interviewed by a psychologist. The recorded interview was admitted as evidence at trial. Letters written by the applicant and sent to the complainant through covert means were also tendered as evidence.
The applicant appeals the conviction on the grounds that the Judge erred in being satisfied that the complainant was capable of giving unsworn evidence at the time the recorded interview was made in accordance with s 13BA(3)(b) of the Evidence Act 1929 and that the letters sent by the applicant to the complainant were not properly admitted in proof of the count of which he was convicted.
Held per Kelly J (Vanstone J and Parker J agreeing) granting permission to appeal in respect of both grounds of appeal but dismissing the appeal:
1. The Judge was entitled to conclude that the complainant was capable at the time of the interview of giving unsworn evidence in accordance with s 13BA(3)(b) of the Evidence Act 1929.
2. The letters were properly admitted as part of the circumstantial case in respect of both counts.
Criminal Law Consolidation Act 1935 (SA) s 50, s 63; Evidence Act 1929 (SA) s 13BA, s 34P, referred to.
McPhillamy v The Queen [2018] HCA 52; The Queen v Bauer [2018] HCA 40; R v Sparks [2017] SASCFC 171, considered.

R v K, GA
[2019] SASCFC 2
Court of Criminal Appeal: (Vanstone, Kelly & Parker JJ)
VANSTONE J:

I would dismiss the appeal. I agree with the reasons written by Kelly J.
KELLY J:
Introduction
Following a trial by judge alone the applicant was found guilty of one count of persistent sexual exploitation of a child contrary to s.50(1) of the Criminal Law Consolidation Act 1935 (count 1). The Judge found him not guilty of a second 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 the Criminal Law Consolidation Act 1935 (count 2).
The applicant appeals the conviction on count 1 on two grounds.
Ground 1 is a complaint that the Judge erred in being satisfied that the complainant was capable of giving unsworn evidence at the time a recorded interview was made in accordance with s.13BA(3)(b) of the Evidence Act 1929 (“the Act”). Ground 2 is a complaint that letters written by the applicant to the complainant were not properly admitted in proof of count 1.
A Judge of this Court refused permission in respect of ground 2 and referred the question of permission to appeal in respect of ground 1 to this Court for determination.
Extension of time
The applicant seeks an extension of time within which to file the Notice of Appeal. The Judge’s reasons were delivered on 1 December 2017, however the applicant did not file a Notice of Appeal until 27 June 2018.
As the respondent has not taken any issue in respect of the application, I would grant the applicant the extension of time within which to file the Notice of Appeal until 27 June 2018.
Before dealing with the issues which arise on the appeal it is convenient to set out the relevant factual background.
Factual background
The allegations at trial were that the applicant committed both of the charged offences against the complainant, who was the granddaughter of the applicant’s then partner, at a time when the complainant was aged between approximately three years and six months and four years and six months. The offences the subject of count 1 occurred whilst the complainant and her older brother, J, were being baby-sat by their grandmother in her home at McCracken over a period of about nine months prior to 25 April 2013.
In late April 2013, the complainant’s grandmother observed the applicant alone with the complainant in her garage. The applicant’s van was parked in the garage at the time. The grandmother heard a noise consistent with someone closing the door of the van. She observed that the curtain was drawn in the van. The applicant and the complainant at that time had been alone in the van. The grandmother did not observe any sexual activity on that occasion, however it caused her such concern that she determined to ask the applicant to leave her home. In accordance with the grandmother’s demand, the applicant left the McCracken house on 25 April 2013 in his van and moved interstate.
At that stage the grandmother did not inform the complainant’s parents of any concerns and only made brief mention of them when asked by the complainant’s mother as to why the applicant had left her house. Nevertheless, there was an arrangement between the complainant’s parents and grandmother that the applicant would not be permitted to see the complainant or her brother again.
About three months later, in July 2013 while he was still residing interstate, the applicant sent a birthday card to the grandmother’s sister and telephoned her. The complainant and her brother were present at the McCracken house at the time and spoke with the applicant on the telephone.
On 3 October 2013 the complainant and her brother sent a birthday card to the applicant. From that time until his return to South Australia the relationship between the applicant and the grandmother gradually resumed, with contact by telephone or Skype. The grandmother permitted the applicant to speak with the complainant and her brother on Skype when they were staying with her at the McCracken house. From about July 2014 the applicant occupied a unit near the grandmother’s home. By December 2014 he was attending the grandmother’s home regularly, however he was not permitted when the complainant and her brother were there.
At about that time, the grandmother noticed the applicant going upstairs from time to time in the vicinity of where a dolls’ house was located. On 20 February 2015 the grandmother discovered letters written by the applicant to the complainant. The prosecution case was that these were only some of the communications that the applicant had written to the complainant as others had been destroyed by the complainant. The letters had been placed by him in “sleeves” attached by him to the complainant’s dolls’ house and to the exterior surface of a drawer in the complainant’s bedroom.
Some of these letters, allegedly written by the applicant, were the subject of count 2. The prosecution in proof of count 2 relied solely upon the evidence of the complainant about one alleged letter which was never recovered. The complainant asserted that in the letter the applicant had asked the complainant if she was still “touching it, licking and then touching [her] rudy” and further that, “he’s still licking his finger and then touching his … doodle”. The complainant also asserted that a letter contained a request that she meet the applicant by the toilet in her grandmother’s house late at night. The applicant admitted that he wrote a letter that was destroyed by the complainant, however he denied writing such words. A number of other letters were recovered and tendered in evidence.
It was later discovered that on 18 February 2015 the complainant had recorded two videos which referred to the applicant and contained sexualised behaviour by her. That evidence was led at trial without objection as being relevant to the possible causes of her sexualised behaviour. In the recorded interview the complainant stated that the applicant did not ask her to make the videos, and she did not know why she did make them. In the first video, the complainant said, “I love you [referring to the applicant] so much, I really want to tongue kiss him”. In the other video the complainant removed her underwear and said, “That’s my vagina”.
There was no suggestion that the applicant had ever seen these videos. After the discovery of them and the letters, the applicant was interviewed by police for the first time. He denied any sexual touching of the complainant.
On 13 April 2015, when the complainant was six and a half years old, she was interviewed at the request of police by Ms Kerri Molden, a qualified Psychologist at the Child Protection Service at Flinders Medical Centre. In that interview, the complainant disclosed, amongst other things, that the applicant had shown her his “rude” parts, and made her show him her “rude” parts, that he had “licked and sucked” her vagina, that he had “licked and kissed” her bottom and that on one occasion he had made her “drink special stuff from his rude part”.
At trial, the applicant opposed the admission of the audio-visual interview with the complainant. There was no challenge to the admission of the letters.
The Judge questioned the complainant on the voir dire and, after viewing the video of the interview, admitted the interview and permitted the child to give unsworn evidence at trial.
Two issues arise on this appeal. The first is whether the Judge was in error to be satisfied that the child was capable of giving unsworn evidence at the time the recording was made in accordance with the requirement set out in s.13BA(3)(b) of the Act. The second issue is whether the letters from the applicant to the complainant were properly admitted in proof of count 1.
Ground 1
Admissibility of interview with the child – s.13BA of the Act
At the hearing of this appeal it was common ground that the admissibility of the interview with the complainant was to be determined in accordance with the provisions of s.13BA of the Act.
The applicant submits that the trial Judge was in error in finding that the complainant had the capacity to give unsworn evidence at the time the recording was made.
The applicant criticised the Judge’s choice to question the complainant on the voir dire in relation to the child’s capacity to give unsworn evidence at the time of the interview. Counsel pointed to authority of this Court that retrospective questioning of a complainant a significant time after the interview could only ever be of minimal, if any, weight in determining the critical issue under s.13BA(3)(b) of the Act.[1] The applicant submitted that in respect of the interview itself the interviewer missed the most obvious way to determine if the child did have the relevant capacity, that is, if she did understand the difference between the truth and a lie, by failing to ask her that very question. This failure, in the applicant’s submission, was compounded by the Judge’s questioning at trial, which revealed that the child was highly suggestible and may well not have understood the difference between telling the truth and a lie at the time of the interview two years earlier. The applicant submitted that the suggestibility of the child was amply demonstrated in her responses to a number of leading questions by the Judge. It was submitted, in particular, that given the child’s evident lack of comprehension at the time of trial as to the significance of swearing on oath, of which the evidence was elicited in response to a question by the Judge, that this Court could not be satisfied that her understanding had been any better two years earlier.
[1] R v Sparks (2017) SASCFC 171.
The applicant pointed to the child’s answers in response to the Judge questioning her as to “little white lies”. The applicant said the Judge should have been concerned that the complainant, at the age of eight years old, thought that it was alright to tell lies in any context at school. The applicant complained about the casualness of the examples given by the Judge to elicit the child’s understanding of the difference between the truth and a lie. In particular, the applicant complained that the questions about football were far too casual and not such as to impart the seriousness of telling a lie in the context of sexual allegations in court. The applicant submitted that without having adequately established that at the time of trial the complainant understood the difference between the truth and a lie, it would be unreliable to infer that the complainant had any greater capacity two years earlier. The applicant submitted that this is reinforced by the fact that the interview itself did not establish the complainant’s ability to give unsworn evidence at the time.
Shortly after commencing the interview, the interviewer had the following exchange with the complainant:
K…It’s my job to listen to children and to talk, help them talk about things that have happened, so I’m going to ask you some questions and we’re going to do some playing and some talking.
C Ok.
KOk. Fabulous, and because I think what children say is very important, I’m going to be writing some things down as we go, because I want to remember, what, everything that you tell me. And sometimes, when I’m trying to understand what children have to say, I get a bit confused and so, if I get something wrong, it’s really important that you tell me that I got it wrong, do you think you can do that?
CYep.
KYep and if I ask you something and you can’t remember, you can just say “I don’t know” or “I can’t remember Kerri” and that’s ok too, what’s that one?
CA unicorn.
KA unicorn, fabulous. Ok, the other thing that I need to tell you about this place is that we only tell the truth and we only talk about things that really happened and so, do you promise that you’ll tell me the truth?
CYes.
On the voir dire the Judge questioned the complainant as to her understanding as follows:
HIS HONOUR
Q.[C], is it.
A.Hello.
Q.You can hear me okay, can you.
A.Yeah.
Q.Good. You get comfortable there. I am the judge in this case. I hope you can see me. I hope I don't speak too quickly. I normally do. [C], can you tell me a couple of things about yourself. How old are you now.
A.Good, thanks.
Q.How long ago did you turn eight. Was it last year, was it.
A.Yeah.
Q.In September, is it, or can't remember.
A.Yeah, September.
Q.Right. So you're probably about eight and a half now; is that right.
A.Yeah.
Q.Do you go to school, [C].
A.Yes.
Q.Where do you go to school.
A.[School].
Q.And what class are you in there in terms of the year.
A.Year 3.
Q.Have you been there all the time at that school.
A.Yes.
Q.Just asking about you now, just as you are now, a couple of things: do you play sport, are you interested in sport at all.
A.Yes.
Q.What about football teams, do you barrack for a football team.
A.Yeah.
Q.Which one do you barrack for.
A.Crows.
Q.Right. What I'm about to ask you at the moment is some questions about you now and whether you're aware of the difference between a truth and a lie. Do you know what I mean by that, the difference between a truth and a lie.
A.Yeah.
Q.If I said to you that you're a mad Port Adelaide supporter, would that be true or would that be a lie.
A.A lie.
Q.If I said your a Crows supporter, would that be true.
A.That would be true.
Q.From your point of view, in your year at school, you've got lots of friends, I take it, have you.
A.Yeah.
Q.And I suppose you talk to them from time to time about all sorts of things; is that right.
A.Mm-hmm.
Q.I just ask you about truth and lie for the moment. Is it important to always tell the truth and not to tell lies.
A.Yep.
Q.Sometimes talking to your girlfriends and your friends at school, do you occasionally tell some lies, some white lies.
A.Yeah, sometimes.
Q.But you try as best you can to tell the truth at all times.
A.Yes.
Q.You're sitting here in a room and speaking to me in a courtroom. Is it more important for you to tell the truth here in court than when you're talking to your friends.
A.Yes.
Q.Why do you think it's important you tell the truth here as opposed to little white lies you might tell to your friends.
A.Because at school it doesn't really matter if you tell like little lies to your friends but at court it does.
Q.And it's probably self-evident but tell me why is it really important to tell the truth here in court.
A.Because - because if you don't, then you might get in trouble.
Q.Right. And it may be that other people might get into trouble also if you don't tell the truth; is that right.
A.Yeah.
Q.So, so far as you're concerned, being in a courtroom, it's a special place, an important place.
A.Mm-hmm.
Q.You're surrounded by two people there alongside you and you're speaking to me on the screen. If, at any stage, you're asked to come and speak to the court and give any evidence in court, do you promise to me that, in giving any evidence to the court, you'll always tell the truth.
A.Yeah.
Q.You won't tell any lies at all to the courtroom.
A.Nope.
Q.I just want to ask you something further about this, if I can. You've told us it's important to tell the truth in court as opposed to what you might do with your friends outside. Are you aware, have any knowledge at all about the idea of giving - not just giving, telling the court what you know but being able to say to the court basically by way of an oath. Do you know anything about the word 'oath' at all and saying what you say to the court on oath, that you will tell the truth, the whole truth and nothing but the truth. Are you aware of that at all.
A.Yep.
Q.Are you aware that in some ways there's some differences, that if you do say something on oath, promising to tell the truth, the whole truth and nothing but the truth, there could be some extra consequences if you didn't tell the truth. Are you aware of that at all or is that something you're not really aware of at all.
A.Mm-hmm.
Q.Not aware of that at all.
A.Yeah, I am aware of that.
Q.So there's probably three levels we've spoken about today. One is talking to some friends at school and occasionally that might give rise to some white lies because there's no consequences for that; is that right.
A.Yep.
Q.Secondly, there's giving evidence in court, speaking to and answering questions in court that you know you must always tell the truth because, if you don't tell the truth, there may be - you may be in trouble; is that right.
A.Yeah.
Q.And there may even be a higher level than that where you're asked to swear on an oath and in those circumstances there might be even greater trouble. That's something of which you are aware, are you.
A.Yeah.
Q.But you haven't had any experience with that at all, you don't know much about that at all; is that the case.
A.Yeah.
Q.All right. That's what I'm asking you about now and you're in year 3, I think, at school. Can I just take you back a little bit, if I could do, to a couple of years ago and you might remember this, that in April of 2015 - sounds like a long time ago, it's about two years ago almost - you remember giving a statement to a lady where you were taken down to a building and given some Playdough to play with and you were asked some questions by a lady called Kerri Molden. Do you remember that.
A.Yeah.
Q.I suppose it's pretty clear in your mind, the first time you've ever been somewhere where you've got the Playdough given to you and you're asked a whole series of questions; is that right.
A.Yeah.
Q.I know this is really hard, terrible question for me to ask you, but at the time when you went to see Ms Molden, I think she said to you something to the effect that when you start to speak about certain events that you're asked about, that it was important you tell the truth. You remember that.
A.Yeah.
Q.And you remember saying that yes, you did promise to tell the truth. Do you remember that.
A.Yeah.
Q.Before you'd gone down to speak to Ms Molden, had you spoken to your parents about what was happening and where you were going to and who you'd be speaking to.
A.Yeah.
Q.Did they say anything to you about the need to tell the truth as well.
A.Yes.
Q.So when you went there, even before Ms Molden spoke to you, you're aware it was important to tell the truth.
A.Yes.
Q.And you're aware of that all the time during the period that you were interviewed by Ms Molden, that there was a need to tell the truth. Is that right.
A.Yeah.
Q.Can I ask just about that, have you had the chance to see that video since the time you gave it, you spoke to the police officer - sorry, Ms Molden.
A.Yeah.
Q.When was the last time you saw the video.
A.When I was talking when we were in a little room with Ryan.
Q.And who's Ryan. Is Ryan a police officer or -
A.He is the one over there.
Q.Mr Williams.
A.Yeah.
Q.That was fairly recent, was it.
A.Yeah.
Q.I assume when you saw that, you also remember the question being asked of you by Ms Molden that you had to tell the truth. Remember that.
A.Yeah.

As a consequence of submissions made by counsel then acting for the applicant the Judge asked the following further questions a little while later:
HIS HONOUR
Q.Sorry, [C], one last question for you, I think I’ve probably already asked of you but you have to bear with me in my old age, but I ask you this question: you know when I was asking you questions about the video and when you went to see the lady, Ms Molden. Do you remember that.
A.Yeah.
Q.What I'm asking you about now is: is it possible for you to think back to what you were thinking at the time. In other words, two years ago when you went down there, you'd been told by your mum and dad to be truthful in your answers. You were told by Ms Molden again about the need to be truthful. Do you remember that.
A.Yeah.
Q.What were you thinking about at the time. At that time did you know the difference between a truth and a lie.
A.Yep.
Q.If I asked you the same questions back then two years ago about whether you were a Port Adelaide barracker - if I told you you were a Port Adelaide barracker at the time, would you have known that to be a lie.
A.Yeah.
Q.Did you know at that stage when you went to see Ms Molden that you were going to an important meeting.
A.Yeah.
Q.And did you know at that stage, when you were again probably two years younger - did you know then the difference between a truth and a lie.
A.Yes.
Q.Did you promise at that stage to tell the truth when you spoke to Ms Molden.
A.Yes.
Q.And that's what you thought and you believed and you understood back then when you were about six years of age; is that right.
A.Yeah.
Q.Thank you, I'm very grateful for that, [C]. Thank you very much for coming in. That's all we need to discuss today, thank you.
A.You're welcome.
Discussion
Some of the criticism made about the trial Judge’s questioning of the complainant is not without justification. It is unfortunate that when questioning the child the Judge asked a number of leading questions and at times included multiple questions within the one question. This had the potential to cause confusion. It is clear that at least in relation to the questioning around the complainant’s knowledge about the swearing of an oath the child was, to some extent, confused. Nevertheless, I do not consider the criticism of the example concerning football given by the Judge to be justified. It served to illustrate the child’s understanding of the difference between the truth and a lie, at least for the purpose of giving unsworn evidence. It is unsurprising that given the child’s confusion as to some of the questioning, the Judge took a prudent course in determining that while she was not able to give sworn evidence, she was capable of giving unsworn evidence.
As to the Judge’s questioning of the child about her recollection at the time of the interview, I consider that it was open to the Judge to make the enquiry, although in the end that evidence was of minimal significance. As this Court observed in R v Sparks[2]:
The question whether there is material capable of satisfying a judge that a person was capable of giving sworn or unsworn evidence at the time of the interview will depend on the facts and circumstances in each individual case. There are no a priori rules such as the limitation suggested by the applicant that the interviewer must ask the person whether he or she understands the difference between a truth and a lie or tell the person that it is important to tell the truth or that the person says that he or she will tell the truth. Nor is there an a priori rule that the material on which the judge relies must be confined to statements made contemporaneously with the interview and cannot extend to subsequent statements by the witness.
[2] (2017) SASCFC 171 at [47].
The complainant’s answers to the Judge’s questions on the voir dire formed part of the additional material which the Judge was entitled to have regard to. I agree with the statements of Blue J in R v Sparks that the probative value of such answers very much depends on the circumstances of each particular case. If, as here, the witness was very young at the time of the interview and the gap between the interview and trial was large, as in this case it was two years, then in the end the answers were of negligible value. However, given the child’s obvious state of maturity at the time of questioning, as demonstrated in the interview, I do not consider that the complainant’s answers to the Judge’s questions were incapable of having any value in relation to this issue.
Nevertheless, the critical material for the purpose of evaluating the child’s ability at the time of the interview to give unsworn evidence was the evidence of the interview itself.
I acknowledge that it is the Judge’s evaluation of the child’s capacity which is required under s.13BA(3)(b) and not the evaluation of other persons. However, in this case, I consider that the evidence of Ms Molden, the Psychologist who interviewed the complainant, was of some relevance and assistance to the Judge in his evaluation of the interview.
Ms Molden was called on the voir dire. Her evidence concerning the procedures she followed and her observations of the child were relevant.
Ms Molden is a registered Psychologist who was awarded a Masters in Clinical Psychology in 1995. For 19 years she has been employed in the Child Protection Service at the Flinders Medical Centre and for over 10 years she has been a Senior Clinical Practitioner there. She has conducted over 520 interviews with young children where allegations of abuse and/or neglect have arisen. Of those interviews, 150 were for forensic purposes.
Ms Molden was involved in the Specialist Steering Committee and in that capacity she was part of the procurement of interview training done by Deakin University as part of specialist training for the new legislative requirements under the Act governing the admissibility of forensic interviews in court. Specifically, Ms Molden was involved in developing the protocol currently being used when interviewing children and in discussions concerning who would be a prescribed interviewer under the Act.
Ms Molden gave evidence that since her interview with the complainant, the protocol for conducting interviews with children had been amended such that it now incorporated a “truth and lie competency test.” This test was described by Ms Molden as a statement by the interviewer that “I need to understand whether you know the difference between the truth and a lie.” This would be followed by an example question to confirm their understanding such as “If I was wearing a yellow polka dot top would that be a truth or a lie?”
Ms Molden’s evidence concerning the amendment to the protocol since the interview is of particular assistance in evaluating the applicant’s submission on this appeal that the interview was deficient as it did not include the suggested questions in the amended protocol.
Ms Molden’s evidence made it clear that the protocol was amended solely in order to comply with the legal requirements of s.13BA of the Act. It was not amended because it was thought to be necessary as a matter of good practice to ask those questions in order to produce truthful responses from a child. To the contrary, Ms Molden opined that the asking of such questions is no more likely to produce an accurate account from a child than eliciting a promise to tell the truth. That evidence also informs why Ms Molden proceeded as she did in the interview at the time it took place.
It is evident from the material that Ms Molden was an experienced professional trained in interviewing young children. In that respect the Judge was entitled to place some weight on her opinion. In these circumstances, I consider the Judge was entitled to place weight on her evidence that she never entertained any concerns at all about the child’s capacity to tell the truth.
Of particular importance in this context was the evidence of Ms Molden as follows:
HIS HONOUR:
Q.There has been some extensive research, has there, that's gone into arriving at that example to be used as part of the standard protocol.
A.Yes, there has. There is some literature that says that children's understanding of the 'truth', the word - the meaning of 'truth' doesn't actually enhance accuracy of children's testimony but more that promising to tell the truth increases children's accuracy. So we were already using the promising part in the previous structure and to talk about what really happened so it's in children's language, so the truth about what really happened, but my understanding is that there was a legislative requirement that we put in a competency test even though there may not be particularly good research to suggest that that's necessary.
Q.So the position was before the Act was changed that you would be speaking to the child, explaining to the child the need to tell the truth and ask the child to promise to tell the truth. Since the legislation was changed in about July of last year, which included reference to sworn and unsworn evidence, it's gone further in terms of the protocol; is that right.
A.Yes, now there is a competency test.
MR WILLIAMS
Q.Did you explain just a moment ago that the introduction of the competency test has been to accord with the legislative requirements rather than for some clinical reason.
A.Yes.
Q.In the interview that you conducted with [C] did you have any concerns at all about her ability to distinguish between the truth and a lie.
A.No, none at all.
Then later, her evidence was as follows:
MR WILLIAMS
Q.In your experience obtaining a promise from the child to tell the truth at the commencement of the interview, is that sufficient to ensure reliability throughout the interview as best you can.
A.Yes, it is and if I had concerns about a child's responses during the interview then I would reiterate 'Is that something that really happened?' and remind them about the promise to tell the truth but I didn't need to do that.
In the end, of course, it was the Judge’s responsibility to determine whether he was satisfied that the witness did have the capacity to give unsworn evidence at the time of the interview in accordance with the requirements of s.13BA(3)(b). This was the critical issue. However, I consider he was entitled to place some weight on Ms Molden’s evidence in reaching that conclusion.
I have viewed the interview twice. As might be expected of such a competent and experienced interviewer as Ms Molden, the questioning of the complainant was appropriate and contained no leading questions.
At the outset, in accordance with the interviewer’s evidence as to the child’s understanding, the interviewer elicited a promise from the complainant to tell the truth.
The complainant was six and a half years old at the time of the interview. However, she demonstrated on more than one occasion throughout that interview that she had the capacity to understand what was being put to her. If what was being put was in her opinion wrong, she did not hesitate to correct the interviewer.
I consider that her answers to non-leading questions were responsive and intelligent. On several occasions she corrected herself, thus demonstrating a level of understanding relevant to determining the critical issue.
The applicant suggested that it was the child’s embarrassment at the discovery of the videos which led her to make false allegations against the applicant. However, in the interview the complainant denied that the applicant had ever told her to make those videos. Her explanation to the interviewer was that she did not really know why she made them. These are not the answers of a child who does not understand the difference between telling the truth and telling a lie.
Although it did not form part of the material on which the Judge was entitled to rely, in reaching my own conclusion as to this issue, I have taken into account the question asked of the complainant towards the end of her cross-examination at trial.
Q.So did you think that when you were being questioned by Kerri [Molden] you needed to tell Kerri that [the applicant] had been naughty just to make your parents happy, is that why you told her that.
A.No, it is because, because before I interviewed Kerri I knew, I start, I knew that he - what he did to me was very naughty and because and because I just want - because I needed to tell the truth to Kerri, Kerri, so I said all of the stuff that happened and all the stuff that I said was the truth.
This child exhibited unusual maturity for a child of her age, both in the interview and at trial. I consider she demonstrated a degree of intelligence and maturity far beyond her tender years.
For these reasons I consider there was ample evidence on which the Judge was entitled to rely to conclude that the child was capable of giving unsworn evidence.
In summary, that evidence included the child’s demeanour and answers in the interview itself, that prior to the interview the complainant’s father and mother had explained to her that she was going to an important meeting, she was told by Ms Molden it was important to tell the truth, she did promise to tell the truth and the evidence of Ms Molden referred to herein.
For these reasons I consider the Judge was entitled to conclude that the complainant was capable at the time of the interview of giving unsworn evidence and there was no error in admitting the interview. I would grant permission to appeal in respect of this ground, however I would dismiss this ground of appeal.
Ground 2
The letters
At the trial, in support of count 2 the prosecution relied on the letter which the complainant said she had destroyed and in which she asserted that the applicant had asked her if she was still “touching it, licking and then touching [her] rudy” and further that, “he’s still licking his finger and then touching his … doodle”.
By the conclusion of the evidence the prosecution indicated it relied solely on the evidence of the destroyed letter in proof of count 2. Nevertheless, a number of recovered letters from the doll’s house found by the grandmother had been tendered as evidence in proof of both counts 1 and 2.
No objection was made to the tender of those letters. However, on appeal the applicant complains that the trial Judge erred in using the letters as evidence of sexual attraction in proof of count 1.
It seems to have been common ground at the trial that the letters constituted discreditable conduct and as such, needed to meet the test set out in s.34P of the Act. Accordingly, the applicant argued that the evidence was not capable of passing the threshold test set out in s.34P as the letters in themselves did not give rise to any inference that the applicant was motivated to act on sexual attraction.
In support of the argument on this ground, the applicant’s counsel relied on two recent High Court decisions, McPhillamy v The Queen[3] and The Queen v Dennis Bauer (a pseudonym).[4]
[3] (2018) HCA 52.
[4] (2018) HCA 40.
In McPhillamy the applicant was charged with sexual offences in relation to a young altar boy. The Court was concerned with the admissibility of evidence of sexual misconduct on the part of the complainant in respect of two other boys. That sexual misconduct was not the subject of any of the charges. It was sought to be led as tendency evidence under the relevant New South Wales legislation.
In Bauer the applicant was charged with numerous sexual offences in relation to a complainant. At issue was the admissibility of evidence of other sexual misconduct with the complainant, not all of which was the subject of the charges. Evidence was also sought to be led from another witness who observed other sexual misconduct of the applicant with the complainant. That evidence was sought to be led as evidence of the applicant’s ongoing sexual attraction to the complainant and as tendency evidence under the relevant provisions of the Victorian legislation.
In the present case the applicant submitted that the use of the letters as evidence of the applicant’s sexual interest in the complainant did not meet the test set out in s.34P(2)(b) of the Act.Accordingly, the Judge had erred in using that evidence in proof of count 1. The applicant’s argument was based on the submission that evidence of sexual attraction alone, without evidence establishing that the applicant was motivated to act on that attraction, will always lack the necessary probative value for admission under that section. This was particularly so where the evidence of the letters was said to have come after the period charged in respect of count 1.
In my view, the letters, properly characterised, were admissible as part of the circumstantial evidence led directly in proof of both counts 1 and 2. Three separate letters which were recovered and which the applicant admitted writing contained the following statements:
·[C] my sweetheart
I am SO glad that you got rid of those letters that you took home. xxx
I knew that you could be a big girl for me. x
I am very relieved that you did. Thank you darling. x
Be better if you put all letters that I write to you on the back of the drawer in your room at granny’s because [J] pokes around upstairs, and he could find them and show granny. So if you could, just answer, any yes/no stuff, and put them back, and not under the doll’s bed please darling. xx
Then I can write some special letters maybe. xxx I love you.
·I feel better now you have told me why you don’t want to write stuff to me. I understand darling. x
But if we keep ALL letters on the back of the drawer in your room it will be OK for you to write stuff to me.
Believe me, you will not get into trouble, only me. I just wish we could somehow get to see each other.
Do you like the clothes wardrobe that I am fixing up for your room?
I’m doing it because I love you SO much xxx
I think we will see each other again soon I hope.
·Darling [C]
I will give you the GOLD ring with the BLUE sapphire to you for your 7^th birthday.
Is that OK with you sweetheart?
Will you marry me?
I LOVE YOU X
If anyone asks where you got this ring, just say I gave it to you when you were 4, or whatever you want. X
In another letter, the applicant asked the complainant to be his Valentine.
Here, the evidence was capable of amounting to an implied admission in respect of the conduct the subject of count 1. Count 1 was a charge of persistent sexual exploitation of the complainant in respect of a period of some nine months between 2012 and 2013. Although the letters were written after the period charged in respect of count 1, the content of those communications between the applicant and the complainant, and the secretive manner in which they were communicated to the complainant was capable of being viewed as an admission that the applicant was sexually interested in the complainant. This in turn was highly relevant to their relationship and to whether the complainant’s evidence of sexual misconduct committed by him was true. They were relevant items of circumstantial evidence. Their relevance and admissibility did not rely on proof or an inference that the applicant had acted on his sexual interest in the complainant. In my opinion, the letters did not amount to discreditable conduct evidence pursuant to s.34P(2) of the Act. The fact that at a later stage in the trial the prosecution relied only upon one letter which had been destroyed in respect of proof of count 2 did not undermine the use of the recovered letters in respect of proof of count 1.
The probative value of those letters was high, considering the age of the applicant at the relevant time. He was 63 and the complainant was six years old. Further, the applicant had been told to stop any contact with the complainant. Instead he chose a covert means of continuing to communicate with the child, even after that time.

For these reasons, I consider that the letters were properly admitted as part of the circumstantial case in respect of both counts. They did not need to satisfy the test set out in s.34P(2) of the Act. However, even if I am wrong and they did constitute discreditable conduct, the probative value of the letters was such that it would have met the threshold test in any event. For these reasons I would grant permission to appeal in respect of this ground, however I would dismiss this ground of appeal.
Conclusion
In summary, I would grant the applicant the extension of time sought within which to file the Notice of Appeal until 27 June 2018. I would grant permission to appeal in respect of both grounds, however I would dismiss both grounds of appeal.
PARKER J:
I agree with the reasons of Kelly J and the orders she proposes.