R v Mayger
[2013] SASCFC 65
•2 July 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAYGER
[2013] SASCFC 65
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
2 July 2013
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES
The appellant was convicted after a trial by judge alone of aggravated indecent assault. The appellant contends the trial Judge gave inadequate reasons as to inconsistencies between the evidence of the complainant in court and what she had said to others. The appellant contends that the verdict was unreasonable and cannot be supported having regard to the evidence.
Held (dismissing the appeal):
1. A judge must clearly set out the basis upon which a decision rests. It is not necessary to give extensive and elaborate reasons. Although the Judge did not give a detailed summary of the inconsistencies in the evidence, he had regard to them. His reasons were adequate (at [25]).
2. The inconsistencies in the evidence are not sufficient to conclude that the verdict was not reasonably open on the evidence (at [28]-[29]).
3. A party can tender a statement under s 34CA of the Evidence Act 1929 (SA) and call oral evidence from the maker of the statement upon the same subject. In such instances it would be difficult as a matter of discretion to limit cross-examination (at [35]).
4. Where a witness simply repeats matters contained in a s 34CA statement (as opposed to filling in gaps in the statement or resolving ambiguities), there appears to be no reason why the statement ought to be admitted in exercise of the judge's discretion pursuant to s 34CA(1) (at[36]).
5. The prosecution tendered the complainant's s 34CA statement and then elicted further evidence on topics addressed therein. The prosecution was entitled to do so. The Court continued to be able to exercise its inherent power to control the questioning of the complainant in court and to disallow inappropriate repetition. No objection was taken to the repetition. No risk of a miscarriage of justice arose (at [40]-[44]).
Evidence Act 1929 (SA) s 34CA, s 9, s 25, referred to.
R v Keyte (2000) 78 SASR 68; Petit v Dunkley (1971) 1 NSWLR 378; Soulemezik v Dudley (Holdings) Pty Ltd (1987) 2 NSWLR 247; Papps v Police (2000) 77 SASR 210; R v Sweeny [2008] SASC 300; Douglass v The Queen (2012) 86 ALJR 108; R v JJA (2009) 105 SASR 563; Gately v The Queen (2007) 232 CLR 208; Mooney v James [1949] VLR 22, considered.
R v MAYGER
[2013] SASCFC 65Court of Criminal Appeal: Gray, Sulan and Blue JJ
THE COURT.
The appellant and defendant, David James Mayger, was convicted of aggravated indecent assault, contrary to section 56(1) of the Criminal Law Consolidation Act 1935 (SA) after a trial by Judge alone. The particulars of the offence were that between 13 October 2011 and 16 October 2011 at Largs Bay he indecently assaulted C, a child of the age of nine years. The defendant appeals against the conviction.
The grounds of appeal are that the Judge did not provide adequate reasons, and that the conviction cannot be supported, having regard to the evidence.
Introduction
The circumstances which gave rise to the conviction are that on the weekend of Friday, 14 October 2011 to Sunday, 16 October 2011, C spent time at her father’s home at Taperoo. C’s parents had been separated for some months and C and her sister would stay with their father from time to time on weekends at his home. On the weekend in question, they had been taken to their father’s home by their mother. They stayed on the Friday and Saturday night.
The defendant had been a family friend for many years. He would regularly stay at C’s father’s home at Taperoo. He was staying at the house on the weekend of the offence.
In summary, the prosecution case was that the two sisters were sleeping on a mattress in the lounge room. During either the Friday or Saturday night, the defendant lay on the mattress next to C and touched her on various parts of her body, including her bottom.
C made a complaint on Sunday, 16 October 2011, to a 13 year old female friend, SG. She made a further complaint to her grandmother after she returned to her grandmother’s home on the Sunday night. There were inconsistencies in the versions given to SC and C’s grandmother.
C was aged about 10 years and 8 months at the time of trial. C had made a statement to a police officer, Detective Brevet Sergeant Nash, on Monday, 17 October 2011. Detective Nash gave evidence that, on that afternoon, he interviewed C. The interview was recorded and transcribed. Both the recorded disc and the transcribed record of interview were tendered as exhibits, pursuant to section 34CA of the Evidence Act 1929 (SA), which provides:
Statement of protected witness
(1) A court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if –
(a)the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b)–
(i)the protected witness has been called, or is available to be called, as a witness in the proceedings; and
(ii)the court gives permission for the protected witness to be cross-examined on matters arising from the evidence.
(2) A court may only give permission to allow a protected witness to be cross‑examined on such matters if satisfied that the cross-examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
(3) Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.
(4) In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross-examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular car because it has not been tested in the usual way.
(5) In this section –
protected witness means –
(a)a young child; or
(b)a person who suffers from a mental disability that adversely affects the person’s capacity to give a coherent account of the person’s experiences or to respond rationally to questions.
At the trial, the prosecutor, having tendered the statement of C, then called C as a witness. The Judge determined that C did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. However, he concluded that she understood the difference between the truth and a lie. He determined that C could give unsworn evidence pursuant to section 9 of the Act.[1]
[1] 9 – Unsworn evidence
(1) A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(2) If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that –
(a) the judge –
(i)is satisfied that the person understands the difference between the truth and a lie; and
(ii)tells the person that it is important to tell the truth; and
(b) the person indicates that he or she will tell the truth.
(3) In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.
(4) If unsworn evidence is given under this section in a criminal trial, the judge –
(a) must explain to the jury the reason the evidence is unsworn; and
(b) may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(5) A justice to whom it appears that a person who desires to lay a complaint or information does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence may ascertain by inquiry the subject matter of the complaint or information and reduce it into the appropriate form, and any action or proceedings may be taken on the complaint or information in all respects as if the complainant or informant had deposed to the truth of the contents on oath or affirmation.
The prosecutor then led C through her evidence-in-chief. She repeated in detail the matters which were the subject of her statement to Detective Nash and were admitted as her evidence, pursuant to section 34CA.
In the section 34CA statement C told Detective Nash that she and her sister had taken two mattresses from the first floor of the house to the lounge room where they went to sleep. She said at about 3 am the defendant came into the bed and he started to touch her. She was asked by Detective Nash and responded:
Q[C] you, what have you come to talk to me about today?
Aum it’s about what happened on the weekend
Qhumhum
AIt was on Friday night when I was sleeping at my Dad’s house
Qhumhum
Aand my Dad said me and my sister could sleep in the lounge room and we had two mattresses down on the floor
Qhumhum
Aand one was big and one was a small mattress. One was a baby mattress and I, me and my sister [B], we went to sleep and at 3 o’clock in the morning Dave he came into the bed, he started to touch me on my bum and my legs and my leg, and my arms and then I woke up, I gave him a pillow and I said can you go sleep on the lounge and he didn’t move and he kept touching me so I rolled over to my sister, to my sister’s bed
...
Q...So can you tell me about, more about the part where you were sleeping in the lounge room?
AUm well we were sleeping in the lounge room and then Dave, he got into the bed. And then he like started touching me on my bum and I, then I woke up and tossed and turned a little bit and then he started touching my legs and my arms and then I’ve rolled over, that’s when I rolled over to my sisters [sic] bed
Qhumhum
Aand I got under her blanket and he still put his arm under that, that blanket
Qhumhum
Aand then I pushed it, I tucked it down and he still put his arm under the blanket and started touching me again and then I kept ripping his hand away and he still did it so then I had to get half the blanket and um hold it with my hand and and then he started rubbing my hand and rubbing my shoulders and then I got up and went to the toilet and then went on the other side of my sister and I couldn’t go to sleep and he just kept looking at me
C was asked to indicate on a diagram upon which areas she was touched. She indicated areas on the front and rear arms and legs. She also indicated an area near her bottom and vagina.
In evidence-in-chief, C said that she and her sister were sleeping on a mattress in the lounge room when the defendant came into the lounge and lay on a mattress next to her. She described the defendant touching her on the leg and arm, the stomach and on her “bum”. She described trying to tuck a blanket between her and the defendant. She said that was when the defendant touched her on the “bum”. All the touching was outside her clothes. She described leaving the bed to go to the toilet, because she was scared. When she returned to the lounge room, she lay down next to her sister, who was asleep. Her sister was between the defendant and C.
C was asked whether she told anybody what had happened to her. She said that she told SG and then, after SG, her nanna. C described walking to the shops with SG. She could not remember what she told SG. C said:
I think I just told her that he touched me, I’m not sure if I told her anything else.
C said that she told her nanna that Dave was the person who had touched her. The following day after school, she spoke to the police.
In cross-examination, C confirmed her evidence-in-chief. It was suggested to her that C told SG that the defendant touched her whilst she was sleeping upstairs, and that he had come in and jumped in the middle of the bed. She denied that. C said she told SG that the defendant touched her. C said she might have said something else but she could not be sure. It was suggested to C that she might have exaggerated the description of what had occurred. She denied this to be the case.
SG gave evidence. It is important to observe that SG first made a declaration to the police on 24 August 2012 about a conversation she had with C which had taken place approximately 12 months before. SG gave evidence that there was an occasion when she was going to the shop with C, when C disclosed to her that the defendant had touched her. SG was asked:
QI would like you to tell his Honour, as best you can remember, what [C] said to you and what I mean is what words [C] said to you. Can you do that please.
AYes. Well, we were walking to the shops from her dad’s house and we got halfway through the park and she said ‘Can I tell you something?’ I said ‘Yes’. Then she said ‘Don’t tell anyone’, I said, ‘Okay’. Then she said something about Dave and her something. Can’t remember.
QDid she say who Dave was.
AYeah.
QDid she use the word ‘Dave’.
AYes.
QShe said something about Dave,’
AYeah.
QDo you remember today what she said about Dave and her.
AThat he was trying to touch her up or something.
QDid you say anything to her when she said that to you.
AYeah, I said ‘Oh my God, really?’ and she said “yea, don’t tell anyone’.
QAfter she said ‘Don’t tell anyone’, did she say anything else to you then.
AI can’t really remember.
SG said that, at some stage, which she cannot remember, she spoke to a police officer over the telephone about the conversation.
In cross-examination, SG agreed that C had told her that the incident had occurred upstairs at her father’s house when Dave came up the stairs and moved his mattress towards her mattress. SG said she had told that to the police officer in August 2012.
C’s grandmother gave evidence that on the Sunday evening, after C had spent the weekend at her father’s home, C had spoken to her. In examination‑in‑chief, C’s grandmother said:
QDid you have a conversation with [C] when you next saw her after she had apparently spent the weekend at your son’s place.
AYes, when she came in, I’d only been in the door a couple of minutes and then she asked me ‘Nanna, can I talk to you”’. I said, ‘Yeah sure’ and she said ‘In your room’. And so I got up and I went into the bedroom with her. She shut the door and she sat on the bed and she started to cry. I said ‘What’s the matter, baby?’, and she broke down and she said that David had touched her. I said ‘What do you mean David had touched you?’, and she said that he tried to touch her in her rude places.
C’s grandmother said that C was upset. She was asked to give a detailed account of what she had been told. She said:
You [sic] said in the lounge room, her and her sister were in the lounge room. I said ‘Where was dad?’, and she said he was upstairs. She said [B] was asleep and she was still slightly awake and then she said David had come into the lounge room and she thought he was going to lay on the couch but he laid down next to her on the mattress and then she started to feel his hands reaching under her blanket and trying to touch her on the bottom and rubbing her thighs and she told him to stop and she threw a pillow up on the couch and said ‘David get on the couch’ and he didn’t move and he kept trying to touch her so she jumped up. She said she jumped up and went out and went to the toilet and she sat in there for a few minutes because she was shaking and she said ‘I thought I’d better go back in the lounge because [B] was still in there’. She said when she went back in there Dave was still on the mattress and she grabbed her quilt and wrapped it around her and laid down next to her sister but she said that didn’t stop him, his hands tried to pull the quilt out from under her and he still tried to put his hand in under the quilt. Then she said she jumped over to the other side of her sister but she said she couldn’t go to sleep because she was worried he would try to touch [B] and she said every time she looked up he was watching her.
The Appeal
Adequacy of Reasons
A primary ground of appeal is that the Judge failed to give adequate reasons. Counsel submitted that the Judge failed to deal adequately with inconsistencies between C’s evidence and her out of court statements in his reasons, as a consequence of which the trial miscarried. It is submitted that the Judge failed to resolve the issue of whether the offending occurred on the Friday or Saturday night. Counsel also referred to the evidence of SG in cross-examination that C had told her that the incident had occurred upstairs, when the defendant moved his mattress towards her mattress, and then moved to the middle and tried to touch her. Counsel observed that account was different to the complainant’s statement to Detective Nash and to her evidence in the case. Further, he pointed to the cross-examination of C when she denied that she had told SG that the incident occurred upstairs. Counsel submitted that it was incumbent upon the Judge to consider the significance of inconsistencies between C’s evidence at trial and what she had said to others.
In Keyte,[2] Doyle CJ, with whom Wicks J agreed, considered the obligations of a trial judge when deciding a case without a jury:[3]
If a judge sitting without a jury is not required to give any reasons, the CCA will have no ability to determine whether the judge has correctly applied the relevant rules of law. Absent reasons from the trial judge, the ability to correct a verdict affected by "a wrong decision on any question of law" will be confined to errors made in the course of the trial itself, and to situations in which it can be said that, as a matter of law, it was not open to the judge to convict. Cases in the latter category would be relatively rare. The absence of reasons will also mean that in those cases in which the correct use of the evidence is affected by rules of law, there will be no means of determining whether the judge identified and correctly applied the relevant rules. The absence of reasons would also mean that in cases in which the circumstances call for particular care, such as cases involving identification evidence, there will be no means of knowing whether and how the judge dealt with the matter requiring particular care. To a considerable extent, the CCA would be deprived of the ability to decide whether there has been a miscarriage of justice as a result of the manner in which the conclusion of guilt was reached. I do not suggest that this is a comprehensive survey of the matter, but the points that I have made are sufficient to indicate that if reasons are not required, the scrutiny of a trial by the CCA will be substantially contracted.
[2] R v Keyte (2000) 78 SASR 68.
[3] R v Keyte (2000) 78 SASR 68, [38].
Doyle CJ dealt with a number of authorities in which the courts have concluded that a failure to give reasons was in itself an error of law.[4] He considered the extent of reasons required. He observed that, insofar as decisions upon facts require reasons, it is not incumbent upon a judge to provide a detailed explanation for the judge’s decision to prefer the evidence of one witness to another. Nor is the judge required to give detailed explanations for his conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of a particular witness, at least when the relevant decision rests substantially upon the impression made by the witness on the judge when giving evidence.[5]
[4] Pettit v Dunkley (1971) 1 NSWLR 376, 382; Soulemezis v Dudley(Holdings) Pty Ltd (1987) 10 NSWLR 247, 259 and 280; Papps v Police (2000) 77 SASR 210.
[5] R v Keyte (2000) 78 SASR 68, [56].
In Sweeny,[6] the Court of Criminal Appeal observed that there is no fixed formula when considering the adequacy of a judge’s reasons. Judges will adopt their own style and method. What is required is that the reasons explain the verdict, identify the legal principles and are sufficient to enable an appellate court to understand and review the verdict. More recently, in Douglass,[7] the High Court confirmed that a judge is required to give reasons sufficient to enable an appellate court to understand the basis upon which the judge found the case proved beyond reasonable doubt.
[6] R v Sweeny [2008] SASC 300, [14].
[7] Douglass v The Queen (2012) 86 ALJR 1086.
The question of whether in a particular case a judge has given adequate reasons will depend upon the circumstances of that case. So long as a judge has clearly set out the basis upon which the judge’s decision rests, it is not necessary for a judge to give extensive and elaborate reasons.
The Judge referred to C’s evidence and to her cross-examination. He observed that the evidence was consistent with the account she had given to Detective Nash. C told Detective Nash, and she gave evidence, that the incident occurred in the lounge room downstairs, that the defendant touched her on her leg and arm, and that he squeezed her “bum”. The Judge did not repeat C’s evidence in detail, although he referred to transcript page references. In her section 34CA statement, C said the incident occurred on the Friday night, though in evidence-in-chief she said it occurred on Saturday night and in cross-examination she said it could not have occurred on Friday night. The Judge did not refer to this. He concluded:
Later in cross-examination, C gave very spirited answers to suggestions that were being put to her, saying “but I am not making it up” (T90-91). I was impressed by the way she dealt with those suggestions, as I was with the suggestion she was asleep when these touchings supposedly occurred or were the product of a dream or were imagined (T93).
The Judge observed that C’s complaint to her grandmother was generally in accord with the account given by C at trial, although there were some differences. The Judge did not refer to those differences, other than to refer to pages of the transcript. He referred to a criticism made of the grandmother’s evidence and determined not to rely upon that evidence.
The Judge dealt with SG’s evidence and concluded that C had told SG that the defendant had tried to touch her up. The Judge did not set out in detail the inconsistencies to which counsel refers, and to which we have referred to above. The Judge said:
Although there are some differences between what SG said by way of complaint in examination-in-chief and what she had previously told the police by way of a suggested complaint, those differences are not sufficient for me to doubt the general thrust of the complaint. I accept that, on that weekend, C had said to SG that the accused had tried to touch her up. This is relevant to consistency only.
The Judge observed that the defendant did not give evidence. He directed himself correctly that the defendant’s silence is not evidence against him, and that the prosecution is required to prove the case beyond reasonable doubt. He concluded:
In making my findings, I am all too conscious of C’s evidence as being unsworn and not corroborated.
Notwithstanding criticisms that have been levelled at C, I found her to be an impressive and forthright young witness. She was confident, articulate and intelligent. Her evidence flowed and she gave a coherent account of what happened to her, in both examination and cross-examination. Taking into account the criticisms of her evidence, I find her to be an honest and reliable witness. I accept the substance of her evidence that the accused was, in the circumstances she described, touching her on the arm, leg and bottom. Those were touchings in circumstances of indecency. Although she may not have been fully awake, she was certainly sufficiently awake and alert to her surroundings to understand and appreciate what was being done to her.
Although the Judge did not give a detailed summary of the inconsistencies in the evidence, we are satisfied that he was aware of them and had regard to them when deciding whether he relied upon C’s evidence, and was satisfied beyond reasonable doubt of the defendant’s guilt. The reasons, although short, were adequate.
We reject this ground of appeal.
An Unreasonable Verdict
As to the ground of appeal that the verdict was unreasonable and cannot be supported having regard to the evidence, we have reviewed the evidence. C’s evidence was consistent in respect of the conduct of the defendant. C told Detective Nash, and she gave evidence, that the incident occurred in the lounge room downstairs, that the defendant touched her on her leg and arm, and that he squeezed her “bum”.
There is some uncertainty about whether the incident occurred on the Saturday or the Friday night. However, that does not detract from the reliability of her evidence. One might understand that, in the case of a young girl, there may be some confusion about which night the incident occurred.
As to the question of whether the incident occurred downstairs in the lounge room or upstairs, C was consistent in her out of court statements and evidence that the incident occurred downstairs in the lounge room. She denied that she told SG that it occurred upstairs. SG gave her statement about one year after the event. It may well be that SG was mistaken. In our view, this inconsistency is not a sufficient basis upon which to conclude that the verdict was not reasonably open on the evidence.
During argument, a question arose as to the application of section 34CA and whether, if evidence is led pursuant to that section, a complainant should be permitted to repeat her evidence-in-chief when giving evidence. In this case, C was permitted to give her evidence twice, once through her statement and then again in court. In JJA,[8] Duggan J, with whom Nyland J agreed, discussed the operation of section 34CA. He identified a number of problems with the operation of the section which he suggested needed to be addressed by Parliament. It is not necessary to repeat all of his concerns.
[8] R v JJA (2009) 105 SASR 563.
One matter which Duggan J considered related to the admissibility of out of court statements, when the maker of the statement was called as a witness and repeated in evidence-in-chief the facts referred to in the out of court statement. It was contended that the statement is then no more than a previous consistent statement which does not enhance the complainant’s credit. Duggan J referred to a judgment of Hayne J in Gately,[9] in which Hayne J, with whom Gleeson CJ, Heydon and Crennan JJ agreed, dealt with that argument in considering section 93A of the Queensland Evidence Act 1977, which dealt with the admission of out of court statements. Hayne J said:[10]
The stated premise (s 93A(1)(b)) upon which s 93A is engaged is that the maker of the statement which it is sought to tender in evidence is available to give evidence. Any other party may require that the party tendering the statement “call as a witness the person whose statement is so admitted” (s 93A(3)). Nothing in the text of the section suggests that the party tendering the statement may not choose to call the maker of the statement as a witness. If the tendering party is required by an “other party” to “call as a witness” the maker of the statement, nothing in the text of the section suggests that the tendering party may not adduce evidence-in-chief from the maker about the matters that are the subject of the statement. The maker of the statement is to be called “as a witness”, not only “made available for cross-examination”. And if the tendering party chooses to call the maker of the statement as a witness, nothing in the text of the section suggests that some different rule applies such that the tendering party is precluded from adducing evidence-in-chief from the maker about the matters dealt with in the statement.
...
Secondly, a statement admitted under s 93A is admitted as evidence of the facts that the statement tends to establish; it is not admitted to bolster the credit of the maker of the statement. The general rule that prior consistent statements of a witness are not admissible to bolster the credit of the witness is not engaged. Because the statement is admitted as evidence of the facts it tends to establish, the hearsay rule is engaged. But the statute provides an exception. It operates according to its terms. Whether or not the maker of the statement is called to give evidence, the statement of a child is admissible as evidence of the facts that the statement tends to establish, if the conditions specified in s 93A are satisfied.
[Footnotes omitted.]
[9] Gately v The Queen (2007) 232 CLR 208.
[10] Gately v The Queen (2007) 232 CLR 208, [103] and [105].
Duggan J observed that, although the wording of section 93A is different to section 34CA, the comments made by Hayne J were applicable to section 34CA:[11]
[11] R v JJA (2009) 105 SASR 563 at [43], [63], [64], [65], [67], [68].
The purpose of the new s 34CA was explained in the Second Reading Speech on these amendments to the Act:
"The Bill deletes section 34CA and replaces it with a provision that allows a court to admit hearsay evidence of the nature and contents of an out-of-court statement made by a "protected witness" from the person to whom it was given, so long as the protected witness has been called or is available to be called as a witness and the court will allow him or her to be cross-examined on the matters arising from the hearsay evidence. A protected witness is defined as a young child or a person with a mental disability that adversely affects his or her ability to communicate effectively with the court. The court may permit such cross-examination only if satisfied that it would elicit material of substantive probative value or material that would substantially reduce the credibility of the hearsay evidence. The provision will therefore sometimes allow evidence of what protected witnesses have said out-of-court to be admitted even though the protected witness has not been questioned about it in court. Whenever this happens, the court must warn the jury that this evidence should be scrutinised with particular care because it has not been tested in the usual way."
…
If the protected witness does give evidence there is nothing in s 34CA to prevent examination-in-chief on the matters dealt with in the statement. The argument that there is a restraint on such questioning was rejected by Hayne J in Gately where the court considered the effect of s 93A of the Evidence Act 1977 (Qld) which, as previously observed, serves a purpose which is similar to that intended by s 34CA.
…
It was submitted in Gately that a party cannot tender a statement under s 93A as evidence of the facts and, at the same time, call oral evidence from the maker of the statement upon the same subject. Hayne J rejected that proposition.
…
In my view the same result must follow under s 34CA.
I would reject Mr Muscat's argument that, if the prosecution chooses to examine the protected witness, the trial judge should exclude the out-of-court statement as it would be no more than a previous consistent statement which did not enhance the complainant's credit.
…
This was the view expressed by Hayne J in Gately …
Although s 34CA and s 93A are worded differently, it is my view the comments made by Hayne J are equally applicable to s 34CA.
It follows that it is open to the prosecution to tender an out of court statement, pursuant to section 34CA, as evidence of the facts and, at the same time, call oral evidence from the maker of the statement upon the same subject.
The procedure followed in this case was in accordance with the observations of Duggan J. That procedure can have the effect of permitting the prosecution the forensic advantage of having the evidence of a child complainant given to the jury twice.
In our view, if prosecuting counsel elects to examine a complainant and have the complainant repeat matters contained in the complainant’s statement, assuming that permission to cross-examine the complainant at large pursuant to section to 34CA(2) is required, it would be difficult as a matter of discretion to limit cross-examination.
If it is intended that a complainant will give evidence in court and repeat matters contained in the out of court statement, then there appears to us to be no reason why the complainant’s statement, pursuant to section 34CA, ought to be admitted in the exercise of the Judge’s discretion pursuant to section 34CA(1). Questions may arise as to what extent any examination-in-chief will amount to a repetition of the witness’s evidence. If a prosecutor simply elicits evidence from the complainant to fill in gaps in the complainant’s original statement, or to clear up ambiguities then, in those circumstances, it would be appropriate for the out of court statement to be admitted.
The concerns which we have expressed should be considered, having regard to the power of a judge to control the proceedings. The section does not prohibit a judge from exercising the judge’s inherent common law power to control proceedings, including the extent of any questioning.
Barry J observed in Mooney v James:[12]
This brings out an essential feature of trial by British Courts, namely, that it is the duty of the Judge to regulate and control the proceeding so that the issues for adjudication may be investigated fully and fairly. The circumstance that the proceeding is one between adversaries each contending for the decision imposes limits, as pointed out by Professor Morgan in the passage quoted above, upon the effectiveness with which the Judge can perform this duty. Within these limits, however, the existence of this duty clothes the Judge with all the discretionary powers necessary for the discharge of the duty, and he may therefore control and regulate the manner in which the evidence is presented or elicited.
[12] Mooney v James [1949] VLR 22 at 28.
At common law this inherent power extended to the disallowance of improper questions including questions that were unnecessarily repetitive whenever occurring. Sections 22 to 25 of the Evidence Act 1929 (SA) provide statutory recognition to this common law power with respect to the judges’ control of cross examination. Section 25(1)(c) makes it clear that unnecessarily repetitive questioning is improper questioning in cross examination.
At the trial of the present proceeding C gave evidence. That evidence was presented by the tender of the child’s out of court statement pursuant to the provisions of section 34CA. In the course of that statement the child provided and then repeated her account of the incident in question. There was no objection of the tender of the statement in its entirety.
The prosecutor then led further unsworn evidence from the child, the Judge having made an appropriate order pursuant to the section 9 of the Evidence Act to allow this to occur. The evidence led orally involved a further repeating of the complainant’s account of the incident. No objection was taken by defence counsel to the leading of any of the oral evidence. As a consequence, the child’s evidence included a repetition of her account of the incident on three occasions. During the course of the appeal a question arose as to whether any unfairness had been occasioned by this repetition.
It is to be accepted that in the present proceeding the prosecution was entitled pursuant to section 34CA to tender the complainant’s out of court statement. As earlier observed, no objection was taken of the tender or any material in the statement. In accordance with the decision in JJA the prosecution was entitled to further question the complainant in court to elicit further evidence on topics addressed in the out of court statement. However, the Court continued to be able to exercise its inherent power to control the questioning of the complainant in court and to disallow inappropriate repetition during examination in chief and at any other time.
In the present proceeding as earlier noted no objection was taken to the repetition. It may be accepted that forensic considerations may have led to that course. Ultimately the Judge received as part of the complainant’s evidence in chief her account of the incident repeated on three occasions, twice in the out of court statement and a further time during her oral evidence-in-chief.
We do not consider that any risk of a miscarriage of justice arose from any of these events, particularly having regard to the defendant’s apparent concurrence in the course that was followed.
Conclusion
We would dismiss the appeal.
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