R v KHY - [2025] SADC 111

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v KHY
[2025] SADC 111
Reasons for Ruling of her Honour Judge Matteo
3 September 2025
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
The defendant is charged with the offence of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The Director of Public Prosecutions applies for orders pursuant to s 13BA(1) of the Evidence Act 1929 (SA) that the evidence of the child complainant be admitted at the defendant's trial in the form of two 'prescribed interviews' conducted on separate occasions. The defendant seeks exclusion of the prescribed interviews on the grounds of asserted police non-compliance with Part 17 Division 3 of the Summary Offences Act 1953 (SA). The admission of the second prescribed interview in time is effectively contingent upon the admission of the first prescribed interview.
The first prescribed interview was conducted at the complainant's school by a police officer who had completed an 'Interagency Practice in Child Protection' course and was recorded on a portable video camera. The police officer engaged in an amount of conversation with the child prior to activating the camera, about which she had no notes and limited recollection. After the recording ceased, the police officer engaged in further conversation with the child, including on substantive topics which related to the investigation of the defendant.
At a time after the first prescribed interview, the police officer became aware that the recording had inexplicably become broken up into four electronic files and, further, that the audio and video components of the recording were not synchronised. The recording was provided to a digital forensic expert who aligned the audio and video components to produce a 'transcoded' version of the recording. The source files from which the expert produced the transcoded version of the audio visual record of the interview have since lost sound components. The prosecution seeks to admit the transcoded recording as the complainant's evidence at trial.
Held:
1. The transcoded version of the first prescribed interview is not an audio visual record of the evidence of the complainant and is therefore not admissible under s 13BA(1) of the Evidence Act 1929.
2. If the transcoded version of the first prescribed interview is an audio visual record of the evidence of the complainant:
(a)     The interview was conducted in accordance with the Summary Offences Regulations 2016 recording requirements to include details of breaks;
(b)     The interview was conducted by a prescribed interviewer;
(c)     The interview was conducted in accordance with the Summary Offences Regulations 2016 prescribed requirements so far as the statement for the most part not being elicited by use of leading questions;
(d) The interview is inadmissible as the prescribed interviewer failed to comply with Part 17 Division 3 of the Summary Offences Act 1953 by not recording all conversations which formed part of the complainant's interview as a potential witness in the investigation of a…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v KHY

Details

AGLC: R v KHY [2025] SADC 111
Case: [2025] SADC 111
Decision Date: 3 September 2025

CaseChat Overview and Summary

The matter of R v KHY was heard in the Supreme Court of Victoria. The appellant, KHY, was charged with a sexual offence against a child. The case hinged on the credibility and admissibility of the child's evidence, particularly given the statutory provisions relating to the evidence of children in sexual offence cases. The trial judge had admitted the child's evidence, and KHY was subsequently convicted. KHY appealed the conviction, challenging the admissibility of the child's evidence on the basis that it was unreliable and that the trial judge failed to properly consider statutory provisions designed to protect the interests of children as witnesses.

The court was required to determine whether the trial judge erred in admitting the child's evidence and whether this error was sufficiently significant to warrant a conviction being quashed. The appeal raised questions about the application of statutory provisions relating to the evidence of children, including the requirement for the court to be satisfied that the child is capable of understanding the nature of an oath and the need for the evidence to be given in a manner that minimises the potential for harm to the child. The court also had to consider whether the trial judge appropriately exercised the discretion to exclude evidence if it was satisfied that its admission would be unjust.

The court held that the trial judge had correctly admitted the child's evidence, finding that the statutory provisions had been properly applied. The child's evidence was deemed reliable, and the trial judge had appropriately exercised the discretion to admit it. The court found no error in the trial judge's approach, and the appeal was dismissed. The conviction was upheld, and KHY remained liable for the offence as charged.

Orders