R v K, MC - [2015] SASC 75

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v K, MC
[2015] SASC 75
Reasons for Ruling of The Honourable Justice Sulan
18 May 2015
EVIDENCE - WITNESSES - COMPETENCE AND COMPELLABILITY
An inquiry was conducted into whether the defendant's child KK should be exempted from being called to give evidence at trial. Evidence was presented to the Court as to KK's mental state, and possible effects should he be called to give evidence.
Held: KK is exempted from giving evidence under s 21(3a).
The probative value and reliability of KK's evidence would be slight. The balance fell in favour of an exemption from giving evidence, in light of the substantial risk of harm that would result if KK was called.
Evidence Act 1929 (SA) s 21, s 21(3), s 21(3)(a), s 21(3)(b), s 21(3a), referred to.
R v T (2004) 90 SASR 567, considered.

R v K, MC
[2015] SASC 75
Criminal

SULAN J: It is alleged that on 5 March 2014, the defendant, MCK, attempted to murder her then husband, JK, by stabbing him in the neck. The defendant and JK’s child, KK, was five years old at the time of the offence and was present and witnessed the stabbing. In the alternative, the defendant was charged with aggravated causing serious harm with intent to cause serious harm.
At the commencement of the trial, counsel for the prosecution indicated that she did not intend to lead evidence from KK, who had been interviewed by Ms Michelle Inglis, a social worker, qualified and trained to interview child witnesses. The interview was conducted nine days after the incident the subject of the charge. Counsel referred to s 21 of the Evidence Act 1929 (SA) (“the Act”).
Counsel for the defendant submitted that I should require KK to be called and made available for cross-examination. I heard evidence from Ms Hoa Tthi Dang and Ms Inglis. I viewed a disc recording of interviews with KK. I heard submissions from counsel representing the interests of KK. I ruled that KK is exempt from giving evidence. I indicated that I would give reasons later. These are my reasons.
Background
Counsel for the defendant submitted that KK could give evidence relevant to the events in question on 5 March 2014. On the defence case, KK was asleep in the bedroom in which the altercation took place. During the altercation, KK awoke and remained awake when the stabbing occurred. It was the defence position that KK witnessed events in the bedroom prior to JK being stabbed. The defence case included a defence of self-defence. After JK was stabbed, the defendant instructed KK to enter the en-suite bathroom, which they did together. The defendant told KK that she would leave the bathroom to retrieve her mobile phone. The phone could not be found, and the defendant returned to the bathroom before again trying to locate the phone. Counsel submits that KK observed these events, and his testimony was important to support the defence case.
Counsel for the prosecution was concerned about requiring KK to give evidence. I embarked on an inquiry pursuant to s 21 of the Act to consider whether I should exempt KK from the requirement to give evidence.
Section 21 of the Act provides:
21—Competence and compellability of witnesses
(1)A close relative of a person charged with an offence shall be competent and compellable to give evidence for the defence and shall, subject to this section, be competent and compellable to give evidence for the prosecution.
(2) Where a person is charged with an offence and a close relative of the accused is a prospective witness against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken) the prospective witness may apply to the court for an exemption from the obligation to give evidence against the accused in those proceedings.
(3)Where it appears to a court to which an application is made under subsection (2)—
(a)that, if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of—
(i)serious harm to the relationship between the prospective witness and the accused; or
(ii) serious harm of a material, emotional or psychological nature to the prospective witness; and
(b) that, having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk,
the court may exempt the prospective witness, wholly or in part, from the obligation to give evidence against the accused in the proceedings before the court.
(3a)   If the prospective witness is a young child, or is mentally impaired, the court should consider whether to grant an exemption under subsection (3) even though no application for exemption has been made and, if of opinion that such an exemption should be granted, may proceed to grant the exemption accordingly.
(4)     Where a court is constituted of a judge and jury—
(a)an application for an exemption under this section shall be heard and determined by the judge in the absence of the jury; and
(b)the fact that a prospective witness has applied for, or been granted or refused, an exemption under this section shall not be made the subject of any question put to a witness in the presence of the jury or of any comment to the jury by counsel or the presiding judge.
(5)The judge presiding at proceedings in which a close relative of an accused person is called as a witness against the accused must satisfy himself or herself that the prospective witness—
(a)is aware of his or her right to apply for an exemption under this section; or
(b)is incapable, by reason of age or mental impairment, of understanding his or her right to apply for an exemption under this section.
(6)This section does not operate to make a person who has himself been charged with an offence compellable to give evidence in proceedings related to that charge.
(7)     In this section—
“close relative” of an accused person means a spouse, domestic partner, parent or child.
Issue
If there were an application under s 21(3) to exempt KK from giving evidence, I would have to determine that application. However, counsel for the prosecution did not make a formal application, as the prospective witness is a child.[1] I must still satisfy myself that it is appropriate to call him pursuant to s 21(3a). I obtained separate representation for KK. Mr Charman, who represents KK in the Family Court proceedings, attended before me as KK’s representative.
Evidence
[1] Section 4 of the Act defines “young child” as a “child of or under the age of 12 years”.
Hoa Tthi Dang
Ms Dang has been the Acting Clinical Co‑Ordinator of Child Protection Services (CPS) since November 2013. In 2007, she graduated in Bachelor of Social Work from the University of South Australia. Since obtaining this qualification, Ms Dang has worked primarily in the provision of direct therapy for children, young people and families who have experienced trauma and abuse.
In her role at CPS, Ms Dang has had a clinical therapeutic relationship with KK. The therapeutic relationship commenced on 8 May 2014. Ms Dang prepared a report based upon this relationship, which was tendered on the voir dire. The initial point of contact with KK was through his father, JK. JK provided initial opinions on KK’s emotional functioning, peer relationships, cognitive functioning and concerns about emotional behavior functioning and identity.
KK had symptoms of trauma from his experience of witnessing the stabbing. Initially, KK avoided any questioning on the topic, and later physically moved away from both Ms Dang and JK to play with other items in the room. Twenty one further therapy sessions were conducted, at fortnightly intervals. KK showed improvement throughout this period.
Part of KK’s therapy was direct discussion of the incident; a process known as “trauma processing”. The goal is for the patient to be able to talk about traumatic events without triggering trauma symptoms; such as re-living the event, or experiencing distress, anxiety or regression to past methods of coping. In Ms Dang’s opinion, trauma processing was not extensively achieved with KK. KK tended to blame himself, and feel as though it was his responsibility to look after and protect JK. She was asked:
QCan you describe for his Honour and by reference to your report if it assists, what improvements he made.
ASo the improvements that we or I had noticed over time was dad was able to support K to manage routines better. He had better sleep routines. One of the things that I had noticed in my general initial assessments of K was he was quite disregulated. So he struggled to find – when I say ‘disregulated’, what I mean by that is he was very active, struggled to maintain conversation. When talking about feelings he would become distressed, not want to talk about it and would become heightened in terms of his playing and then –
HIS HONOUR
QWhen you say ‘become heightened in his playing’, was that avoiding having to talk to you.
AYes.
QAnd go off to play.
AAnd be loud.
…
QCan you describe for his Honour that which it is that you have been able to achieve.
ASo for quite a period of time there were some concerns about K blaming himself, feeling as though he has to look after Dad and protect him. Over time I was able to support K to recognise that he is a child and Dad can be in charge, and Dad can keep him safe, and that’s not his job. So that would be one part of it, so we were able to do that I think to a certain point, and then other things that we were able to process is supporting K to have some emotional interest – he could talk about any experiences or things that made him feel upset, supporting Dad to develop that language as well.
Ms Dang gave evidence that the impact on KK and the defendant’s relationship if KK were called to give evidence was a concern. In response to the following questions, she said:
QIf he were required to talk about this incident and he were to give his evidence or give his account of it in a room away from the courtroom so that his evidence is recorded on CCTV and therefore he would not be exposed to seeing his mother, and if he were able to have either you or somebody who he’s acquainted with present at the time whilst he’s giving his evidence, what is your view about that process.
AI think my view would be that having to ask K to talk about his experience of what he may have witnessed means that he has to recall those events which possibly may trigger a stress response in him which has the potential to cause more harm, anxiety, being upset – he may not have the tools or resources to manage that, like internal resources to manage that himself at the moment whereas an older person or adolescent I would hope they would have some opportunities to develop skills to calm themselves, to still understand questions when they’re distressed whereas I guess K is five, I wouldn’t think he would have been able to develop to that level to be able to manage those stress responses or to respond adequately to questions.
KK would be unlikely to understand the intent and purpose of giving evidence in a court setting. KK has not seen his mother for an extended period of time. He wants to have a relationship with her. Ms Dang expressed doubts as to whether KK could give evidence without regression to prior ways of coping with stress. These regressions were outlined as nightmares, constant fears for the safety of his father and blaming himself for the events which occurred.
Michelle Inglis
Ms Inglis is a social worker trained in interviewing children who may be prospective witnesses in criminal proceedings. Two interviews were conducted by Ms Inglis with KK. They were filmed and I have viewed both.
The first substantive interview was conducted prior to this trial, on 13 March 2014; nine days after the incident. The interview was conducted in the course of the police investigations.
Counsel for the defendant, submitted that KK should be called. He submitted that KK could give relevant evidence about the incident. KK could also give evidence about various incidents which occurred prior to the events of 5 March 2014.
At my request, counsel provided a list of proposed questions which he would seek to ask of KK. The proposed questions are annexed to these reasons.
Ms Inglis gave evidence. She was asked:
QAre you able to assist me as to, first, what your views are about his ability to be able to answer these questions (a) from his cognitive abilities, (b) from his memory and any other gravamen factors.
AI can do my best. I would be really concerned about these types of questions being asked of K. All of the questions, to me, appear to be leading or closed, which means a leading question provides a lot of information about an alleged event within the question and suggest an answer and a closed question is a question that only provides a ‘Yes’ or ‘No’ option. What we know about interviewing children is that they give their best accounts when they are asked to provide a free recall of an event. Leading questions don’t give a child an opportunity to provide necessarily accurate information. A child is more likely to provide the most accurate information when asked for a free recall about an event. Questions that are like ‘What happened?’, ‘Tell me everything that you can remember about what happened’ and giving the child an opportunity to describe what they can remember is the best possible way of ascertaining or getting the information about the child’s version of what happened, in my view and in the view of the research. The more leading and the more suggestive a question is and the more closed a question is, which only gives the child an option of one or two answers, the more likely we are to get false or inaccurate information from a child and then it’s going to be more difficult to determine what the child has actually experienced.
QWhat about the time lapse that has occurred.
AIn my opinion, the child is most likely to give the most accurate information the first time that they are provided an opportunity to talk about their experiences. And the sooner to the event that that interview or opportunity to talk about their experiences occurs is going to provide the best opportunity for the child’s memory. In time a child of K’s age is – his memory is still developing, so what we know is that young children, they way they encode memories is still developing. So that he’s going to remember salient – he might possibly remember salient features of his experiences in time, but it is going to be hard to tell what went from that encoding stage to storage into his long-term memory. The process is still developing in children of his age.
I considered that KK should be further interviewed by Ms Inglis to ascertain whether KK should be required to give evidence. As set out above, Ms Inglis expressed concerns about the types of leading and closed questions proposed. In Ms Inglis’ opinion, the prepared questions were unlikely to the best account of KK’s recollection of events. Further, children of KK’s age do not have well‑developed mental faculties for encoding memory, nor do they have well‑developed concepts of time. It was directed that Ms Inglis conduct the second interview in a manner which she considered appropriate, but with reference to the questions prepared by defence counsel. Later that afternoon, Ms Inglis met with KK. Around 40 minutes into that meeting with KK, he began asking for his father and showing signs of stress and worry about his safety. The second substantive interview was conducted on Friday 1 May 2015, which was recorded.
Counsel and I viewed the recording of the second substantive interview. Ms Inglis gave evidence that during the questioning on the events surrounding and including the stabbing, KK’s play became violent. He appeared to be re‑living the trauma. He was using play-doh at the time, and began stabbing at it. His play became trauma focused, and he attempted to “heal” the play-doh. At this time, KK verbally requested the questioning to stop. Ms Inglis gave the following evidence:
A… As we all saw from the document and our conversations last week, there were several areas, a number of areas requested to be explored with K. I started very generally with opening up a conversation about anger between his parents and that led – that saw K straightaway start to talk about the incident involving the stabbing. I explored that with K as much as he was willing to. He required a number of breaks during the interview and I made a point of, as we do with all child interviews, going at their pace to ensure that their emotional wellbeing and psychological wellbeing is supported during the process. We were able to explore the outside of the stabbing incident. I was able to explore with him to a degree the beach incident, as requested by Mr Moen, some yelling incidents, as requested by Mr Moen. However, at that point in time the interview had been going for almost an hour. K very clearly expressed to me verbally that he didn’t want to talk about things any more on more than one occasion. After the first time I gave him a break, then made another attempt to re-engage him. He very clearly reminded me that he had asked me not to talk about it any further and, as a clinician, we need to make decisions that are safe and in the best interests of the children when pursuing these types of conversations with children. There were other points during the interview that I was aware without him requesting me specifically to cease conversation, he was demonstrating other signs of not wanting to talk about it as well by interrupting me in the middle of questions and deflecting my questions to talk about other things. They are the ways of children demonstrating their lack of willingness to talk about situations. The other key point that I was concerned about during the interview was that it was evident to me that K’s play demonstrated that he was reliving the incident and he was reliving his trauma in relation to that. Just after halfway through the interview, he began to demonstrate stabbing with Play‑Doh. Talking about his father being stabbed, his play became more trauma focused and then he started to heel the Play-Doh and that was repetitive throughout the second half of the interview. I didn’t feel it was in his best interests to continue to question him when he verbally requested me to stop and when his play was demonstrating that he was feeling traumatised.
Mr Charman submitted that, having regard to the evidence, it was in KK’s interest to exempt him from the requirement to give evidence.
Section 21
Section 21 is intended to provide a prospective witness, in this case a child of the victim and the defendant, with some protection from the substantial risk of harm which may arise from giving evidence against the accused, balanced against the gravity and circumstances of the offending and the community interest in the evidence being given.[2] The Act makes special provision, in the case of a young child, that the Court be required to consider whether to exempt the child from giving evidence, even if no application for exemption is made.
[2] R v T (2004) 90 SASR 567 at [58].

I accept the evidence of Ms Dang and Ms Inglis. Both witnesses have had professional, clinical dealings with KK since the events in question. Both expressed grave concerns as to KK’s ability to cope with the “harm of a material, emotional or psychological nature” that giving evidence about the events would cause. Ms Dang referred to KK’s desire to continue a relationship with his mother. KK is not mature enough to understand and appreciate the risks that giving evidence would pose to his relationship with her. Both Ms Dang and Ms Inglis were of the opinion that, if KK was required to give evidence, he would regress. He would suffer significant emotional trauma if he was required to attempt to recall any of the detail of the incident. I am satisfied that if KK was required to give unsworn evidence, that would result in serious emotional harm to him and to his future cognitive development.
I was impressed with Ms Inglis’ methods during both interviews. Insofar as it was possible without suggesting answers to KK, she was able to extract from KK his recollection of the incident. It is obvious from having viewed the video recording of each interview that KK had a very general recollection of what occurred. Further, it is evident that he did not wish to speak about it, even in a surrounding which was not intimidating. The probative value of KK’s recollections and observations are, in my opinion, extremely slight. At its highest, to paraphrase, KK stated that “mummy stabbed daddy and daddy hit mummy in the head”. At one point in the second interview, KK alluded to the stabbing occurring first; however at no point was any reliable or probative statement made as to the precise sequence of events on the morning in question. In light of the opinions proffered by Ms Dang as to the impacts, both personal and familial, of compelling KK to give evidence, I am satisfied that regression is likely in the event KK is compelled to give evidence, and that the risk of a serious regression is substantial. I am therefore satisfied of the risk of substantial emotional harm to him, pursuant to s 21(3)(a).
The defendant is facing serious charges. KK was present and likely awake during at least some of the events the subject of those charges. He is an eye witness to them. However, the evidence given by Ms Inglis as to the memory processing faculties of a child of his age, coupled with his limited recollection of the events and the large amount of time that has passed since they occurred, support the contention that KK’s evidence would have little probative value.
I have viewed both interviews. In my opinion, any evidence given by KK would have very limited probative value, having regard to the issues in the trial. There is no dispute that the defendant stabbed JK. KK cannot give any detail of how events unfolded. In my view, any evidence he could give, having regard to his age and that he would be asked to recall events which occurred over 12 months ago, would have very limited probative value. If he were cross‑examined, any answers to leading questions would lack reliability. I accept the evidence of Ms Inglis that leading questions to a six-year-old child will result in responses, if they can be elicited, which cannot be relied upon. A child of KK’s age is not able to give a sequential account of how events unfolded.
I have viewed Ms Inglis’ efforts to extract information from KK. The information was simply not forthcoming. KK is too young to recall accurately the events which were simply too long ago. An event of that nature would be likely to traumatise a mature adult, let alone a child who was five years old at the time.
Conclusion
The interviews of KK by Ms Inglis reveal that any evidence adduced from KK as to the events in question would be of limited probative value. There would also be issues of reliability which require directions to the jury as to the severe limitations in relying on KK’s evidence. KK did not volunteer any information in either interview with Ms Inglis. The events in question occurred over 12 months previously, representing approximately 1/6^th of KK’s entire life. The accuracy of any recollections of those events would be questionable at best.
The negative impacts on KK’s personal well‑being and his family relationships outweigh the value that could be derived from KK’s evidence. The evidence of Ms Dang and Ms Inglis satisfies me that there would be significant impacts upon KK should he be compelled to give evidence.
I am satisfied that if KK were to be called, it would cause serious harm of a material, emotional or psychological nature to him. I am also satisfied that it would harm the relationship between him and his mother. I therefore order that KK should not be compelled to give evidence under s 21(3a). There is insufficient justification for exposing KK to the risks outlined in s 21(3)(a) when balanced against sub‑s (3)(b).
I therefore ruled that he is exempt from the obligation to give evidence in the proceedings.
R v K, MC
PROPOSED QUESTIONS IN REGARDS TO KK EVIDENCE
1.Do you remember your daddy taking a mop and throwing it at your mother and it hitting the door in the bedroom;
2.Recently do you remember a trip to the beach when your daddy was arguing with your mother;
3.Your mother was pregnant at the time with S;
4.Was your daddy driving fast and did you and your mummy tell him to slow down;
5.When you went to the beach K did your daddy push your mummy in the chest area;
6.Did your daddy push her a few times when he was at the beach;
7.Did your mummy tell your daddy to stop;
8.Did your daddy say that he wanted to punch your mummy at the beach;
9.Did your daddy say that he did not want to have a child other than you;
10.Do you remember your daddy saying that the child that your mum was pregnant with was not his when he was at the beach;
11.When you were at the beach did you hear your daddy say that he wanted your mummy dead and wanted to kill her;
12.When you were in the car leaving the beach did you ask your daddy why he wanted to kill your mummy;
13.Did your daddy say to you in the car that he said that because your mummy makes him so angry sometimes;
On another occasion before the beach trip;
14.Do you remember your daddy trying to hit your mother in the bedroom;
15.Do you remember your mother saying “no”;
16.Do you remember yelling out to your dad and saying “no don’t hit mummy”;
17.Do you remember your daddy punching the furniture in the bedroom and hurting his hand.
On another occasion before the beach trip:
18.Do you remember your daddy hitting your mummy when she was on the lounge in the house;
19.Do you remember your daddy pushing your mummy on to the lounge;
20.Do you remember your mummy crying;
21.Do you remember your mummy pushing your daddy away from her;
22.Do you remember your mummy slapping your daddy when he was hitting your mummy.
Do you remember your daddy locking himself in the bedroom of the house:
23.Do you remember that your daddy was using a knife and moving it up and down his arm and near his throat;
24.Do you remember your mummy telling your daddy to stop doing this;
25.Do you remember your mummy asking your daddy to give her the knife;
26.Do you remember that your daddy was crying;
27.Do you remember that your daddy gave the knife to your mummy.
Your [sic] remember when you broke your arm:
28.Did you want to see your daddy to show him and tell him;
29.Did your mummy say that she would find your daddy with you so you could show him and tell him;
Do you remember waking up in the bedroom in mummy and daddy’s house when they were fighting:
30.Do you remember your daddy holding your mummy around the neck;
31.Do you remember your daddy bleeding;
32.Do you remember your mummy trying to push your daddy off;
33.Do you remember your daddy saying that he was not lying to your mummy;
34.Do you remember your daddy yelling “I’m not lying”;
35.Do you remember your daddy getting angry in the bedroom;
36.Do you remember your mummy telling your daddy that the baby was his;
37.Do you remember your daddy saying no it was not his baby;
38.Do you remember your mummy crying;
39.Do you remember saying “daddy stop don’t hurt mummy’;
40.Do you remember your daddy saying to you “just stay here buddy”;
41.Do you remember your mummy and daddy leaving the bedroom and coming back into the bedroom;
42.Do you remember your daddy punching your mummy in the stomach;
43.You know where your stomach is don’t you;
44.Do you remember your mummy grabbing a knife;
45.Do you remember your daddy holding onto your mummy and fighting with her;
46.Do you remember your mummy stabbing your daddy;
47.Do you remember your daddy pushing your mummy into the closet area in the bedroom beside the toilet/bathroom where you go to the bathroom;
48.Do you remember your mummy telling your daddy to stay away from her;
49.Do you remember your mummy telling you to go into the toilet/bathroom and to close the door;
50.Did you go into the bathroom;
51.Did you see your mummy and daddy fighting when you went to the toilet/bathroom;
52.Do you remember your daddy falling on the ground in the bedroom;
53.Do you remember your daddy trying to get the knife when he was on the ground;
54.Did your mummy kick the knife away from your daddy;
55.Did you tell your mummy to get in the toilet/bathroom because your daddy was moving;
56.Did your mummy go out of the toilet/bathroom and get her mobile telephone;
57.Did your mummy bring the knife into the toilet/bathroom;
58.Did your mummy close and lock the toilet/bathroom door;
59.Was your mummy crying;
60.Did your mummy say to daddy “please don’t hurt me’;
61.Did you see your daddy get up and move towards your mummy;
62.Did your mummy say “please don’t hurt me”;
63.Did you see your daddy then fall on the bed;
64.Did you say “look mummy, daddy’s mobile” and pint [sic] to daddy’s mobile;
65.Did mummy come in the bathroom and try daddy’s mobile;
66.Did mummy go back out and tell you to stay in the toilet/bathroom;
67.Did mummy go out;
68.Did your mummy tell your daddy that she was calling the police;
69.Did you and your mummy go down to your bedroom and stay there;
70.Did you and your mummy sit up against the door of your bedroom;
71.Did the police come a little later and do you remember sitting in the back of a police car.