R v Kertai

[2010] NSWDC 264

CITATION:	R v KERTAI [2010] NSWDC 264
HEARING DATE(S):	15 November 2010 - 17 November 2010
EX TEMPORE JUDGMENT DATE:	16 November 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Application declined
CATCHWORDS:	CRIMINAL LAW - Judgment - Application for direction to jury under s165A(2) Evidence Act
LEGISLATION CITED:	Evidence Act 1995
PARTIES:	The Crown John Kertai
FILE NUMBER(S):	DC 2010/29489
COUNSEL:	J Bowers - Crown A Norrie - Accused
SOLICITORS:	Director of Public Prosecutions JN Legal - Accused

JUDGMENT

1 HIS HONOUR: The evidence is closed and addresses in this matter are going to occur tomorrow. We took the opportunity to discuss the directions that I would be giving. One of the directions sought by Mr Norrie is a direction under s 165A(2) of the Evidence Act. We have therefore spent a short period of time this afternoon considering that matter. The Crown opposes the direction being given.

2 It is to be noted that I should only give a direction under 165A(2) if the accused has satisfied me that there are circumstances, other than solely the age of the child, particular to the child, that affect the reliability of the child's evidence and that warrant the giving of a warning or the information referred to in section 165.

3 What circumstances particular to the child in this case, MN, does Mr Norrie, on behalf of the accused say affect the reliability of her evidence? He relied on three matters. Firstly, he says that in the transcript of the interview between MN and Detective McCarthy the complainant refers to a shark. She said that, whilst she was at the beach with the accused, "I thought I saw a shark but I didn't." She goes on, "It had red eyes…red eyes and these things, black ones." As she said that she was describing things with her hands. The officer thought that she was attempting to describe a pointy nose but MN said that she wasn't. It is said on behalf of the accused that this was a fantasy. Well, what part of it would I find was a fantasy? Would I say it was untrue because MN thought she saw a shark but she didn't or that she didn't see something with red eyes?

4 Of course it would only be a fantasy if MN was describing something she didn't see but there is no evidence one way or the other as to whether she saw something that she has thought initially was a shark, which had red eyes and looked otherwise in the manner she described on the videoed interview.

5 A second aspect that Mr Norrie relies on concerns the reference by MN to a witch. She was asked by Detective McCarthy how she felt when the accused put his finger inside her "wee wee". She replied: "It feeled, it feeled like a witch um hurting me." She was cross-examined about this.

6 The answers given by MN in cross examination made it abundantly clear that she did not actually believe that witches exist and indeed, she said with some levity in her voice during cross-examination that her mother believed in ghosts but she didn't. Although she gave this answer to this question:

"Q. MN, when were you hurt by a witch?
A. When it was the beach."

7 She immediately clarified what she meant in answer to the following question, which was:

"Q. MN, what did the witch look like?
A. It wasn't a real witch but inside my brain it feeled like a ugly - really ugly witch, has got pimple all over it and it got like a scar near its foot and face."

8 She was then asked:

Q. When you say witch, MN, are you meaning the witches that have broomsticks?
A. Yeah, but I am not talking about a real witch because witches aren't true."

9 In fact she said she never will believe witches are true.

10 It is said that this demonstrates a vivid and creative imagination. It has to be understood that it would be quite inappropriate to conclude from what MN said to the police officer and what she said in interview that she genuinely believed that the person that hurt her was a witch or that witches were capable of hurting her. It is abundantly clear that MN was attempting to describe her emotional state when the accused did to her what she said he did.

11 Quite eloquently for a child of six, she made it clear that she was not saying that witches really exist but was attempting to describe how bad it was and how she felt when the accused put his finger inside her genitals.

12 The third aspect that Mr Norrie relies on is the ability of the complainant, MN, to lie. There is evidence to that effect in the following circumstances: the relationship between MN's mother and the accused was not a good one. Although she denied it, both MN and her father said that the complainant's mother had accused Mr Kertai of bringing fleas into the premises where the complainant lived.

13 Mr JN gave evidence today that in order to avoid trouble and, I gather, lead a more relaxing life with his de facto wife, it would be better if she did not know that the accused visited the unit where she lived in Rockdale. He, therefore, told his daughter not to tell her mother that the accused had visited there.

14 In cross-examination MN, the complainant, agreed that she would lie to her mother about whether the accused had visited her mother’s unit while she was out. As far as this aspect is concerned, that a child would lie to one parent at the request of another parent is not surprising at all. Mr JN said that sometimes his daughter would lie about the matter and at other times she wouldn't, which I gather caused a few problems for him.

15 This area of the law is one which I confess to find a big curious. Usually judges give directions to juries about matters which are within the knowledge of the law and which lay people, such as jurors, may not appreciate without a direction. Obvious examples concern hearsay, accomplices and prison informers. The experience of the law is that, for example, accomplices may have reasons to make up evidence.

16 But what is it about children that gives judges special knowledge as to their reliability? In fact, if literature readily available to lawyers, such as the various Law Reform Commission reports, is examined, it would tend to suggest that the special knowledge judges have would be that children are more reliable than is commonly accepted. However, s 165A, of course, must be given some work to do and a judge can't simply say, “well, I don't have any special knowledge in this area and so I won't give a direction”.

17 Notwithstanding the curiosity I have just raised, it's clear that a direction should be given if there are circumstances particular to MN that affect the reliability of her evidence and warrant the giving of the warning or information contemplated by section 165A. Even if it can be said that a vivid imagination used by a child to explain her emotions and a willingness to lie to one parent on behalf of another are particular to the child, the question is whether those matters affect the reliability of her evidence such as to warrant the giving of the warning or information under s 165A. They are very common place matters when children are concerned. The effect that they have on her reliability is obvious. Uninstructed, the jury may conclude that the child is prepared to lie might be thought to damage her credibility. Uninstructed, the jury may conclude that the fact that the child uses the analogy of a witch with pimples to explain emotions might perhaps be thought to indicate that she is able to use that imagination to imagine an event which did not occur.

18 It is unnecessary for me to say anything to the jury about those matters for them to understand the significance of those two matters on the reliability of the evidence of the complainant.

19 It will be noted that I have ignored so far in this part of my judgment the reference to MN seeing a shark - or, to be more precise, telling the police officer that at one stage she thought she saw a shark but it turned out not to be one - because of the problem with that matter that I raised earlier. We simply do not know whether it is true or not, and there is no warrant for assuming that it is not true.

20 There is, of course, the risk that a juror would interpret a warning given by a Judge as a hint, despite any other direction that I would give to the jury. So a Judge would not give a 165A warning lightly, because of its possible misinterpretation. Nevertheless, as I keep saying, if Mr Norrie on behalf of the accused had satisfied me that there are circumstances particular to MN that affect the reliability of her evidence, to warrant giving of the warning or information then I would have done so. But for reasons I trust I have explained, Mr Norrie has not overcome the burden which is placed upon him.

21 Accordingly I decline to give the direction sought.

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