R v MITTIGA
[2010] SADC 65
•12 May 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MITTIGA
Criminal Trial by Judge Alone
[2010] SADC 65
Reasons for Ruling of His Honour Judge Stretton
12 May 2010
CRIMINAL LAW - EVIDENCE
ADMISSION OF A YOUNG CHILDS STATEMENT AS A PROTECTED WITNESS
Child age 9 at time of alleged offences of unlawful sexual intercourse with a person under 12, aggravated indecent assault (2) and gross indecency - whether a “protected witness” - whether appropriate to exercise discretion pursuant to s 34CA of the Evidence Act (SA) (“the Act”) to admit two videotaped statements given to police officers as evidence - criteria to be applied in assessing applications pursuant to s 34CA of the Act.
Held: the child is a protected witness - statements satisfy the statutory criteria - discretion to admit evidence therefore enlivened - enlivened discretion should be exercised to admit statements where consistent with the statutory purpose - statements admitted in the exercise of discretion - video of statement may be tendered as an exhibit.
Evidence Act 1929 (SA) s4, s34CA, referred to.
R v J, JA [2009] SASC 401, considered.
CRIMINAL LAW - EVIDENCE
GROUNDS TO PERMIT CROSS EXAMINATION OF A PROTECTED WITNESS ON MATTERS ARISING FROM A TENDERED STATEMENT
Application by defence counsel for permission to cross examine a "protected witness" per s34CA(2) of the Act - criteria for granting permission considered - meaning of "such matters", "likely to elicit", "substantial probative value" and "substantially reduce the credibility of the evidence" considered.
Held: the test is whether there is a substantial chance that cross examination on a certain topic will rationally effect the assessment of the probability of material facts in issue relevant to the proof of the events charged, or there is a substantial chance it will substantially reduce the credit of a witness - unnecessary to predict the specific probative effect - historical recognition of the effectiveness of the process of cross examination is relevant - permission to cross examine granted in relation to three topics and refused in relation to one topic.
Evidence Act 1929 (SA) s4, s34CA; Acts Interpretation Act 1915 (SA) s22, referred to.
Re Bolton; Ex Parte Douglas Beane [1987] HCA 12; Combet v The Commonwealth (2005) 224 CLR 494; Project Blue Sky v ABA [1998] HCA 28; Australian Finance Direct Limited v Director of Consumer Affairs Victoria [2007] HCA 57; Owen v South Australia (1996) 66 SASR 251; Waugh v Kippen (1986) 160 CLR 156; Dowling v Dalgety Australia Ltd [1992] FCA 35; Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) FCA 206; Bailey v Rolls Royce (1971) [1984] I.C.R. 688; Taplin v Shippam [1978] I.C.R. 1068; Australian Telecommunications Commission v Kreig Enterprises Pty Ltd (1976) 14 SASR 303; Tillmanns Butcheries Pty Ltd v Australian Meat Industries Employees' Union (1979) 27 ALR 367; Bennington v Peter [1984] R.T.R. 383; Boughey v The Queen [1986] HCA 29; R v Crabbe [1985] HCA 22; R v Hallett [1969] SASR 141; R v Teremoana (1990) 54 SASR 30; Cool & Sons Pty Limited v O'Brien Glass Industries Limited (1981) 35 A.L.R. 445; Hecar Inverstments No. 6 Pty Limited v Outboard Marine Australia Pty Limited [1982] A.T.P.R. 43,699; Dandy Power Equipment Limited v Mercury Marine Pty [1982] FCA 14 September 1982; R v Lockyer (1996) 89 A Crim R 457; R v RPS [1997] NSWCCA 13 August 1997; Bropho v WA (1990) 171 CLR 1; Thompson v Australian Capital Television Pty Ltd (1994) 127 ALR 317; Hinton v Lower (1971) 1 SASR 521, considered.
R v MITTIGA
[2010] SADC 65Introduction
The accused in this matter is charged with one count of unlawful sexual intercourse with a child under the age of 12, two counts of aggravated indecent assault and one count of gross indecency, each in relation to complainant S (“the complainant”). The accused is also charged with various other sexual offences against the complainant’s two sisters, which are not relevant for present purposes.
The matter is being tried by Judge alone.
Application was made pursuant to s 34CA of the Evidence Act 1929 (SA) (“the Act”) to tender two statements made by the complainant. I granted that application. The evidence of those statements was then admitted by the tender of videotapes depicting the giving of the statements to police officers.[1] The evidence was admitted through a police officer to whom the statement was given, in compliance with s 34CA(1).
[1] The taped Interview with S dated 17/6/2008 was tendered as P7 at page 78; the taped interview with S dated 21/9/09 was tendered as P11 at page 84. The tapes were played. By consent transcripts of each were provided to the Court as aides-memoire.
Application was subsequently made by defence counsel pursuant to section 34CA(2) of the Act for permission to cross examine the complainant on certain topics. I granted that application in part.
I publish my reasons for each decision.
Application to tender the statements of a protected witness
The DPP applied pursuant to s 34CA to admit evidence of two out of court statements that the complainant gave to police. Those two statements took the form of interviews and were recorded on video.
They contain all the allegations that comprise the alleged offences against the complainant including a series of uncharged offences of unlawful sexual intercourse leading up to the charged offence of unlawful sexual intercourse. The DPP leads the uncharged material to explain the relationship and provide a context to the charged acts.[2]
[2] No objection was taken to the DPP leading the uncharged material.
The complainant was nine years of age at the time of the alleged offence of unlawful sexual intercourse, and ten years of age at the time of three subsequent alleged offences of aggravated indecent assault and gross indecency.
The law
Section 34CA provides:
Section 34CA- 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 care 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.
Section 4 of the Act defines “young child” as a person of or under the age 12 years. It was not disputed that the complainant concerned in this application is a young child for the purposes of s 34CA of the Act.
Section 34CA(1) prescribes three conditions which must be satisfied before a court may admit evidence of the nature and contents of a statement made outside the court by a protected witness. They are that:
(1) having regard to the circumstances in which the statement was made and any other relevant factors, the statement has sufficient probative value to justify its admission;
(2) the protected witness either has been called or is available to be called as a witness in the proceedings; and
(3) the court gives permission for the protected witness to be cross-examined on matters arising from the evidence.
Section 34CA(2) however restricts the permissible scope of cross-examination of the protected person in relation to “such matters”. The court may only permit cross-examination concerning “such matters” where the court is 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.
These provisions were considered by The Court of Criminal Appeal in the matter of R v J, JA (2009) SASC 401. Members of that court did not completely agree in their interpretation of s 34CA.
The majority[3] observed at the outset that the three conditions precedent to which I have referred must be fulfilled before the statement is admissible, and that the court can only give permission to allow cross-examination if satisfied the cross-examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
[3] Duggan J, with whom Nyland J agreed.
The majority observed that s 34CA(2) involved an element of ambiguity and that one possible interpretation is that, unless permission were given in advance for cross-examination, the statement could not be admitted. Duggan J, with whom Nyland J agreed, expressed the view that such an interpretation would defeat the purpose of the legislation, and would be inconsistent with the intention of Parliament as articulated in the second reading speech. Accordingly his honour concluded:[4]
In my view s 34CA(1)(b)(ii) contemplates that the court can give permission for the protected witness to be cross-examined after having regard to the capacity of that person to give evidence. However, when it comes to the actual cross-examination, the court must ensure that the questions to be asked comply with the requirements of s 34CA(2). The court is required to ensure compliance with s 34CA(2) and may take steps to do so both before the commencement of the cross-examination and while it proceeded. The potential awkwardness of this exercise in some cases is obvious, but that is the effect of the legislation. (Emphasis added)
[4] (2009) SASC 401 at [44]
White J, in dissent on this point, characterised the section as having a protective purpose that contemplates only the one grant of permission. His honour said that s34CA(1)(b)(ii) requires that there be a grant of permission and sub-s (2) is a simple qualification of the exercise of the discretion involved in the grant of that permission.[5] White J said that s 34CA(2) has a protective purpose, to protect those without the capacity to cope with cross examination from exposure to that process. His honour concluded that a court should not allow evidence of the out of court statement of a protected witness to be admitted in those cases where by reason of tender years or mental disability the protected witness could not be expected to cope with cross-examination. The corollary was that the test propounded by sub-s (2) was one in the same as the 34CA(1)(b)(ii) test and simply related to the capacity of the witness.[6] In other words, there is a one stage test whereby the court assesses whether the protected witness has the capacity to be usefully cross examined. If so, precondition 34CA(1)(b)(ii) is satisfied, and the witness may also be cross examined at large pursuant to 34CA(2). If not, the statement cannot be tendered.
[5]((2009) SASC 401 at [172].
[6] (2009) SASC 401 at [173].
I am however bound to apply the law as articulated by the majority, and to regard 34CA as propounding a two stage process.
Determining whether a witness’ statement may be admitted only requires the first of those stages to be undertaken.
Accordingly I must answer the following questions in the case at bar. Firstly, am I satisfied that these statements have sufficient probative value to justify admission. Secondly, is the complainant available to be called as a witness. Thirdly, should I give permission to the protected witness to be cross-examined having regard to the capacity of the protected witness to give evidence.[7] In other words, does the witness have the capacity to give evidence and be cross-examined.
[7] (2009) SASC 401 at [44].
Then, however, at the stage when counsel might propose to cross-examine that witness, the second stage of the process is enlivened. At that stage I must apply the following;
However, when it comes to the actual cross-examination, the court must ensure that the questions to be asked comply with the requirements of s 34CA(2). The court is required to ensure compliance with s 34CA(2) and may take steps to do so both before the commencement of the cross-examination and while it proceeded.[8]
[8] (2009) SASC 401 at [44].
In other words, the section does not provide for any blanket prohibition on cross-examination, nor does it enable a court to rule generally that there be no cross examination of a protected witness. Rather, it provides that cross-examination on the statement and the matters therein is restricted to where it is likely to elicit material of substantive probative value, or material that would substantially reduce the credibility of the statement. It will only be where cross examination is not likely to elicit any material of substantive probative value nor is it likely to elicit anything that would substantially reduce the credibility of the statement that no cross-examination will occur. In matters where there is a fundamental factual dispute going to the question of guilt or innocence, cross examination is historically recognized as an important and effective tool in assessing the truth and accuracy of evidence, and in such cases the test may often be able to be satisfied. I will return in more detail to the application of the test to this case later in these reasons.
Material before the court
This is a trial by judge alone. Accordingly I have not, prior to the case commencing before me or during the case, looked at or referred to any matter on the file beyond the information and any formal notice filed by the parties.[9] I have taken this course so that, as the judge of the facts, I am only influenced by the admissible evidence called before me, and to ensure both the actuality and appearance of procedural justice in that all parties are fully aware of and may meet every matter that I might potentially consider in relation to my verdict.
[9] In this case the matters filed were three applications by the DPP seeking various uncontroversial protections for the three complainants during the course of their evidence, and the final filing was a rule 9 application filed on behalf of the accused, all of which matters therein have been resolved between counsel.
Each counsel commenced to make submissions to me as to the factual background I should accept as the basis for this application. I asked whether their submissions were on an agreed fact basis. Each counsel agreed that I should accept the summary of facts and circumstance put by counsel as a fair reflection of the facts relevant to this application. I interpret the comments made by Duggan J in R v J, JA at [38] to contemplate this as an acceptable way to proceed.[10]
[10] R v J, JA (2009) SASC 401 at [38].
Counsel put the following matters.
The complainant concerned gave a detailed interview to police on 17 June 2008 recounting the allegations of unlawful sexual intercourse comprising count 4 in the information. The events allegedly occurred only two days before, on 15 June 2008.
The second interview with the police was then conducted on 21 September 2009. Count six was alleged to have occurred between 31 July 2009 and 1 September 2009 and count seven and eight were alleged to have occurred on 19 September 2009, just two days prior to the second interview.
The complainant is available to be called as a witness.
The complainant was 9 years old at the time of the first alleged offence and interview and ten years of age at the time of the final three alleged offences and the second interview. She is therefore likely to struggle to recall such detail some two years later. Further, a witness who worked with the complainant has described the complainant as mentally slow.
I was invited to view the videos concerned. I have viewed the videotape interviews. The complainant provided detailed accounts of the alleged offences. The questioning appears to have been conducted fairly and without unfair leading questions. The complainant appeared to be able to understand questions asked of her and to rationally and responsively answer questions asked of her on the topic of the alleged offences.
I turn now to consider the issues.
Admission of the statements pursuant to s 34CA
I have regard to all that has been put to me as to the circumstances in which the statements were made, including all the circumstances apparent from the videos.
I find that the complainant is “a young child” and accordingly a protected witness within the meaning of s 34CA of the Act.
I find that the statements are probative in that they are seemingly complete and relatively contemporaneous expositions of all the allegations that form the four counts in the information concerning the complainant. Other particular circumstances that I take into account are the apparent slight slowness of the child concerned, the fact that it is now 22 months since the alleged events alleged in count four, and approximately eight months since the events alleged in counts six, seven and eight, and that a child of the complainant’s age with her mental capabilities is in my view likely to forget at least some of the events over such a period.
I find that the complainant is available to be called as a witness in the proceedings.
Having viewed the video tapes concerned and accepting the facts put to me by counsel about the complainant, I am satisfied in a general way that she has the capacity to give evidence and be cross-examined in the sense articulated by Duggan J at paragraph 44 of R v J, JA.
Accordingly I find all the statutory criteria satisfied.
I note that the section provides that if the criteria are satisfied, the court may admit the evidence. I take this to mean that satisfaction of the statutory criteria enlivens a discretion as to whether the evidence may be admitted.
No doubt this anticipates that objection may be taken to the admission of the statement on all the same grounds that objection may be taken if the evidence were given orally.[11] Such objections might be as to relevance, impermissible prejudice, leading questions, hearsay[12] and so on. If however offending material can be excised, no doubt that can be done in the same way as it is commonly done with records of interview of defendants, and the remaining unobjectionable portion can still be led.
[11] Gately v The Queen [2007] HCA 55 per Hayne J at [89].
[12] By this I mean the complainant recounting the comments of third parties in the statement, where not justified by any exception to the hearsay rule.
In my view the enlivened discretion should be exercised consistently with the purpose of the section. The purpose of the section, apparent from the words of the section and from the Second Reading Speech, is to facilitate the proof of sexual offences against children where by the time of trial the child witness may have forgotten or been therapeutically encouraged to forget the facts, and where the child’s out of court statement given shortly after the offence is for that or some other reason the best record of the child’s memory of it. Further, to minimise the trauma of giving the evidence.[13]
[13] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1457 (Michael Atkinson, Attorney-General)
Accordingly where notwithstanding the satisfaction of the three criteria mentioned, admission of the out of court statement would not further that expressed policy or be necessary to achieve the aims of the section, it may be appropriate to exercise the discretion so as not to admit the out of court statement. Examples of when this might be appropriate might be where it is apparent that at the time of trial the child’s memory is just as good as when the child gave the statement and where there would be little or no trauma associated with giving the evidence concerned,[14] or where the statement is worded badly or inaccurately such that calling the evidence in chief in the normal way would present the evidence of the events more accurately, more fairly or more completely.
[14] For example where the evidence might be brief, or uncontroversial, or relate to non traumatic events or offences
I find there is nothing objectionable about the contents of the statement on any traditional ground of objection. The statements do contain some hearsay and a small amount of irrelevant material. If this were a jury trial I would have formally ordered the excision of that material. As the trial is by judge alone counsel have indicated they agree that I simply disregard it where it occurs.
Having watched the videos of the statements, and in the totality of the circumstances, I find that it is highly unlikely that the complainant’s recall is as good now as at the time she gave the statements. I find that there is no reason to suppose that rejecting the out of court statements such that the complainant would be required to recount the events orally in chief would result in the events being recounted more accurately, more fairly or more completely. I find that giving evidence about the events in question is likely to be traumatic for the complainant.
Conclusion – the statements should be admitted pursuant to s 34CA
Accordingly I rule that the DPP may lead and the court will admit evidence of the nature and contents of statements given by this complainant on 17 June 2008 and on 21 September 2009, from the persons to whom those statements were made.
I also rule that the video itself is admissible as an exhibit.[15] I will however be mindful that what the witness says is the evidence and that I should not allow the tender of the video as an exhibit to allow the evidence to assume any undue weight by virtue of the video itself being an exhibit.[16]
[15] R v J, JA (2009) SASC 401 per Duggan J at [19] and [26].
[16] R v J, JA (2009) SASC 401 per Duggan J at [28]-[30].
Application to cross examine the protected witness
Defence counsel subsequently made application for permission to allow the complainant, who I have found to be a protected witness, to be cross-examined pursuant to s34CA(2) on certain topics.
It was therefore necessary to consider what criteria should be applied in determining whether permission should be granted.
S 34CA(2) provides that a court may only permit 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.
There are four key elements to this test. Those elements are “such matters”, “likely to elicit”, “material of substantial probative value” and “material that would substantially reduce the credibility of the evidence”.
The scope of “such matters”
A threshold question that arises is the meaning of the phrase “such matters”. The limitation on cross examination imposed by s 34CA only applies to “such matters”.
Prima facie the subject matter of s 34CA is “the nature and contents of a statement made outside the court”.
“Such matters” also appears to reference the third condition precedent to the admissibility of the 34CA statement, the 34CA(1)(b)(ii) requirement that the court has given “permission for the protected witness to be cross examined on matters arising from the evidence.”
Whichever of these “such matters” references, applying the majority’s interpretation of the section in R v J, JA, prima facie s 34CA restricts cross-examination on the statement or matters arising from it. An issue arises as to whether it might have no application nor place any consequent restriction on cross-examination concerning matters not mentioned in the statement, so if there was probative cross examination or cross-examination relevant to credit that was not directly related to the matters traversed in the tendered statement, there might arguably be an unrestricted right to cross-examine concerning those topics.
Another question might arise where the prosecutor calls the protected witness and asks the protected witness to indicate whether the statement that has been tendered pursuant to s 34CA is the truth. Would that mean that defence counsel could then cross-examine at large as to whether the statement was indeed the truth? The argument might run that such cross-examination should be allowed as it relates to the assertion given in evidence in chief, rather than the 34CA statement or matters arising from the evidence it contains.
On the other hand, does “such matters” in 34CA mean “the matter before the court”, or put another way, “all or any topic about which the protected witness might be asked, whether or not referred to in the statement”, such that s 34CA prohibits any cross-examination at all of a protected witness whose statement has been tendered, unless the 34CA(2) test is satisfied.
This issue was not directly addressed in R v J, JA although White J said that “such matters” were the “matters arising from the evidence” to which the condition in s 34CA(1)(b)(ii) refers.[17]
[17] R v J, JA [2009] SASC 401 at [160].
The starting point is to determine the meaning of the words of the section,[18] taking into account the purpose of the legislation,[19] which such assessment may in turn take account of legitimate extrinsic aids to interpretation that may shed light on the true purpose.[20]
[18] Re Bolton; Ex Parte Douglas Beane [1987] HCA 12, Combet v The Commonwealth (2005) 224 CLR 494 at 567.
[19] Project Blue Sky v ABA [1998] HCA 28, Acts Interpretation Act 1915 (SA) s 22, Australian Finance Direct Limited v Director of Consumer Affairs Victoria [2007] HCA 57 at [32]-[41].
[20] Owen v South Australia (1996) 66 SASR 251.
The crucial words that delineate s 34CA’s coverage are “such matters”. The use of the word “such” tends to indicate that the matters have been referred to earlier in the section. The section primarily deals with “the nature and content of a statement made outside the court by a protected witness” and as mentioned the words also appear to reference “matters arising from the evidence” from 34CA(1)(b)(ii). There is in my view some linguistic ambiguity as to whether “such matters” are the statement itself and the words used in the statement, or the statement itself and anything on the topics raised in the statement, or everything relating to the matter before the court that the witness might potentially be asked whether or not it is covered by or referred to in the statement and whether or not it is led in supplementary examination in chief.
The purpose of the legislation assumes particular importance in resolving such ambiguity.[21]
[21] Acts Interpretation Act 1915 (SA) s 22.
The words of s 34CA(2) are plainly designed to restrict cross-examination to substantially probative topics and major items likely to affect credit. This must be for the protection of the witness. Whilst the section is of general application it is envisaged that the section will primarily be used in criminal trials where accused persons are at risk of conviction and penalty.[22] There are accordingly several important principles of interpretation at play here.
[22] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1457 (Michael Atkinson, Attorney-General)
Firstly, the provision restricts the long standing common law right of cross-examination. That right is fundamentally important to any litigant, and particularly so to a person facing serious criminal charges. On the other hand the provision has a strong protective character. It seeks to shield two classes of forensically disadvantaged person from the full rigours of unrestricted cross-examination. These two principles of interpretation are potentially at odds, in that the former commonly justifies a restrictive interpretation and the latter an expansive one.
Where conflict has arisen between the related concepts of beneficial and penal the High Court has suggested that it is helpful to distil the dominant purpose of the legislation.[23] Here however, whilst it could be argued that the dominant purpose of the provision is to facilitate proof and protect a class of witness, I believe an intention is apparent from the structure of the legislation to balance two equally important principles, neither of which ultimately dominate.
[23] Waugh v Kippen (1986) 160 CLR 156.
The legislation recognises that the right to cross-examine and the protection of very vulnerable witness are both important. Whilst s 34CA (2) and (5) make it plain that such a witness is entitled to protection, s 34CA(1)(b)(ii) and (4) recognise the importance of cross-examination. In this way the words of the legislation reveal an intention to strike a clear balance between these two aims.
I turn to whether there are extrinsic aids which might cast light on the scope of “such matters”.
The Attorney General addressed the purpose of s 34CA in his Second Reading Speech on 25 October 2007:[24]
[24] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1457 (Michael Atkinson, Attorney-General)
Statement of protected witness
A court will not usually admit evidence from a person of what another person has said out of court as the evidence of that other person if it is possible for that other person to give oral evidence about it directly to the court. What person A says to person B, out of court, is hearsay if the court hears it from person B. A person charged with an offence is entitled to have the charge proved by the best evidence available, and the direct evidence of person A is better than person B’s recollection of what person A said.
If a court makes an exception to this rule and allows A’s evidence to be given by means of B telling the court what A said to B, it will usually require A to be available to be cross-examined on that statement. The principle is that a defendant should be able to test a witness’s evidence through cross-examination however that evidence may have been given.
Some time ago, the Act was amended to codify that exception for complaints of young children about alleged sexual offences. The aim was to facilitate the proof of sexual offences against children. Section 34CA allows a court hearing a charge of a sexual offence against a young child to admit a record of the child’s complaint about the alleged offence to another person, out of court, to prove the truth of the facts stated in the complaint without the child having to give that evidence at trial, so long as the child is available for cross-examination.
Unfortunately, s 34CA is rarely used. The courts have held that if a young child 'cannot remember making [the complaint] or is inarticulate in the witness box', he or she is not, for the purpose of this section, available for cross-examination, and the complaint cannot be admitted into evidence. Without that child’s evidence, the charge may be impossible or difficult to prove. By the time of trial, a very young child may have forgotten the incident or, if it was traumatic, therapeutically encouraged to forget it. In these cases, although the child’s out-of-court statement immediately after the event will be the best record of the child’s memory of it, that statement cannot be admitted into evidence, and the very inability to remember the events that prevents the child’s out-of-court statement being admitted into evidence will also prevent the child giving evidence directly. In these circumstances, a court determining a charge of abuse of a young child may never hear the child’s account of it. Indeed, these cases may not even come to court.
The Bill deletes s 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.
The aim of this provision is to make s 34CA work as originally intended, so that the court has the best possible available evidence before it, even if that is hearsay evidence. It does not, of course, derogate from any discretion the court may have to exclude evidence that is admissible in this way.
These amendments are needed so that, where possible, people who commit crime do not escape liability simply because the youth or mental disability of the victim or a key witness stops them being available, in the technical sense, to give evidence in person. The ALRC recently identified this topic as needing uniform treatment in Australia. It pointed out that:
...the admission of a child’s out-of-court statement can preserve the child’s account at an early stage, making it a reliable form of evidence, and could reduce the stress and trauma on the child of testifying in court.
In s 34CA, South Australia had attempted to achieve this. The Bill should remedy the defects in that s.
It is clear that an important expressed purpose of the legislation is to “facilitate the proof of sexual offences against children … without the child having to give evidence at trial, so long as the child is available for cross examination”, and “…reduce the stress and trauma on the child of testifying in court”. This purpose may not be fully achieved if the protected witness could be cross examined at large on anything not directly related to the statement.
This is particularly highlighted when issues of credit are considered. Many issues relevant to credit may be matters not covered in or arising out of the tendered statement, and so if the s 34CA protection only applies to restrict cross examination on matters in or arising out of the statement, much cross examination as to credit will not be covered and the witness will remain largely unprotected in that respect. Ultimately, I do not believe that this is the intention of the legislature.
In the final analysis in my view “such matters” is intended to refer to the whole subject matter of the allegations dealt with by the statement, and any issues that might affect the credit of the witness in relation to them, whether or not such credit issues are flagged in the statement. This interpretation is supported by the operative phrase “such matters” in 34CA(2) apparently referencing “matters arising from the evidence” in 34CA(1)(b)(ii). (Emphasis added).
The effect of supplementary examination in chief
The legislation is silent as to whether, as happened here, a witness whose statement or statements have been tendered pursuant to s 34CA of the Act can also be led in examination-in-chief, and further if that is done whether the complainant can be asked to verify on oath the contents of their statement and give further supplementary evidence. This represents another of the potential uncertainties created by this legislation.
When considering a comparable section of the Evidence Act 1977 (Qld) in Gately v The Queen,[25]Hayne J said he could see no impediment to calling a witness whose statement has also been tendered, to give supplementary sworn evidence in chief. Such a process was also followed in R v J, JA, and specifically approved by the Court of Criminal Appeal.[26]
[25] (2007) 232 CLR 208 at [102]-[104].
[26] [2009] SASC 410 at [6]-[7] and [60]-[68].
Accordingly there is no impediment to the complainant being called and led in examination in chief, notwithstanding that her statements have been tendered in accordance with s 34CA.
That occurred without objection in this matter.
An issue arises as to whether this might germinate an unrestricted right to cross-examine in relation to the oral evidence in chief.
The legislation provides that the evidence of the statement is not to be led by the complainant, but rather by the person to whom the statement is given. There is accordingly no requirement for a complainant to prove or even identify their statement as a precondition to its admissibility. Accordingly if a prosecutor elects to supplement and strengthen the prosecution case by calling the complainant to give oral evidence in chief, to verify the statement on oath and give supplementary evidence; on a literal interpretation of the legislation there may be an argument that the s 34CA restrictions may not apply to restrict cross-examination concerning that examination in chief.
In resolving this ambiguity, I return to the overarching intention of the legislation and the balance of restrictive and protective characteristics apparent therein. Ultimately I conclude that the legislation intends to and does provide general protection to a witness who falls within the definition of the section and whose statement is tendered after the criteria articulated in s 34CA(1) are satisfied, and will cover the cross-examination of that person at large, so long as the examination-in-chief does not materially depart from “matters arising from the evidence” covered in the statement. Here the examination-in-chief was brief and directly related to the evidence contained in the statements tendered.
A more difficult question might arise if a significant proportion of the evidence is led in chief, such that matters beyond the “such matters arising from the evidence” in the statement are covered, but that was not the case here.
Likely to elicit
Cross examination may only be permitted if a court is satisfied that cross-examination is “likely to elicit” material of substantial probative value or material that would substantially reduce the credibility of the evidence. I turn to consider what that test involves. The operative word is “likely”.
The Macquarie Australian National Online Dictionary defines likely as:
Probably or apparently going or destined (to do, be, etc.)
The Encyclopaedic Australian Legal Dictionary defines likely as:
Having a degree of probability greater than merely possible, but less than certain. The location of `likely' on the probability spectrum varies according to the statutory context.
It is important to assess where “likely” in the context of s 34CA sits on the probability spectrum, particularly given the potential challenges a court faces in applying the predictive test envisaged in 34CA(2) to such a fluid and unpredictable process as cross-examination. These challenges were recognised in R v J, JA[27] however the scope of cross-examination was not an issue on that appeal.
[27] [2009] SASC 401 at [58].
The word has no settled legal meaning.[28] It is susceptible of various meanings. It may mean 'probable' in the sense of more likely than not or more than a 50% chance. It may mean a real or not remote possibility. There are other possible meanings.[29]
[28] Dowling v Dalgety Australia Ltd [1992] FCA 35 at [115].
[29] Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) FCA 206.
Depending on context and subject matter it has been held to mean “probable”, “more probable than not”, “more likely than not”, “odds on”, “more than a fifty per cent chance” [30] or whether the event “would” happen.[31] It may require a lesser degree of probability such as “more than a mere possibility”, or “material possibility or chance”.[32]
[30] Bailey v Rolls Royce (1971) [1984] I.C.R 688, Taplin v C Shippam [1978] I.C.R. 1068, Australian Telecommunications Commission v Kreig Enterprises Pty Ltd (1976) 14 SASR 303, Tillmanns Butcheries Pty Ltd v Australasian Meat Industries Employees' Union (1979) 27 ALR 367, Dowling v Dalgety Australia Ltd [1992] FCA 35 at [114]-[116].
[31] Dowling v Dalgety Australia Ltd [1992] FCA 35 at [114]-[116].
[32] Bennington v Peter [1984] R.T.R. 383.
The primary distinction apparent from these expositions at first blush might seem to be the distinction between something that is probable and something that is possible.
“Likely” has in a number of criminal law contexts been defined in terms which specifically disavow that distinction and place the concept as higher than a possibility but not necessarily higher or lower than probable. In Boughey v The Queen Mason, Wilson and Deane JJ held that “likely” in the context of a statutory homicide definition meant:[33]
….. its ordinary meaning, namely, to convey the notion of a substantial – a ‘real and not remote’ – chance regardless of whether it is less or more than fifty percent.
….. the expression “likely to cause death” in s.157(1) is an ordinary expression which is meant to convey the notion of a substantial or real chance as distinct from what is a mere possibility.
[33] Boughey v The Queen [1986] HCA 29 in the judgement of Mason, Wilson and Deane JJ at [15] and [18], placing considerable emphasis on R v Crabbe [1985] HCA 22, and R v Hallett [1969] SASR 141 at 153 where the Full Court, again in the context of murder, said “’likely’ seems to us to mean no more than a more than 50 per cent chance of the event happening and ‘probable’ seems to us to mean the same. In fact dictionaries give them as synonyms.”
In contrast Gibbs CJ and Brennan J in the minority said that the natural meaning of “likely” was “probable” and not “possible”, and that the longstanding common law application of that definition to the mental element in unintended murder should continue to apply in the context of the use of the word “likely” in the codification of the elements of unintended murder.[34]
[34] Boughey v The Queen [1986] HCA 29 Gibbs CJ at [4] and Brennan J at [27].
In R v Teremoana Cox J, with whom Jacobs J agreed, followed the majority’s approach to “likely” in Broughey in the context of “doing an act likely to endanger the life of another” contrary to s 29 of the Criminal Law Consolidation Act 1935 (SA). His honour said:[35]
The word “likely” in this sort of context conveys the notion of a substantial or real chance, not a mere possibility.
[35] R v Teremoana (1990) 54 SASR 30 at [40].
As can been seen, all will depend on the statutory context. Given the protective aspect of s 34CA of the Act, in my view Parliament cannot have intended that cross examination be permitted where there is no more than a simple possibility that it may yield substantial probative value or material that would substantially reduce the credibility of the evidence. Such an interpretation would allow nearly as much cross-examination as would occur in an unrestricted context, and the protection afforded the witness would be little more than marginal. That is unlikely to have been intended. In my opinion the remaining two likely options are represented by the respective views of the High Court in Broughey. Either “likely” means “a substantial – a ‘real and not remote’ – chance regardless of whether it is less or more than fifty percent”, or it means “more probable than not.”
I must bear in mind that the word is not used as it was Broughey and R v Crabbe[36] to define the ambit of criminal liability, but rather is used to define and delimit an existing common law procedural right. Both are however issues of considerable importance to an accused person and although s 34CA is not limited to criminal proceedings it is clear from the Second Reading Speech that criminal proceedings are its primary intended use.
[36] [1985] HCA 22.
The statute plainly intends to preserve some right to cross examine, and an assessment must be made as to whether it intends only to preserve cross examination where it is more probable than not that “useful material”, as White J summarised it in R v J, JA,[37] will be elicited or whether it intends to preserve cross examination where there is a substantial chance it will be elicited.
[37] [2009] SASC 401 at [160]
It is useful to reverse that proposition. Would Parliament intend that useful material cannot be sought and led where there is a substantial chance that it would be elicited if allowed? That outcome in my view is on balance unlikely to have been intended. A trial will be more likely to produce a just result when all relevant useful material is provided, and in the end an interpretation that is more productive of a just outcome is likely to have been intended, in the absence of clear words to the contrary.
Therefore in my view “likely to elicit” means a substantial chance in the sense articulated by the majority judgement of the High Court in Broughey.
Substantial probative value
“Substantial” is another term with no settled legal meaning. As Lockhart J said in 2UE Sydney Pty Ltd v Stereo FM Pty Ltd:[38]
[38] [1982] FCA 206 .
The word 'substantial' is imprecise and ambiguous. Its meaning must be taken from its context. It can mean considerable or big: Palser v. Grinling (1948) A.C. 291 per Viscount Simon (at p. 317). It can also mean not merely nominal, ephemeral or minimal. Sometimes it is used in a relative sense, and at other times to indicate an absolute size or quantity.
The term is used in the Trade Practices Act 1974 (Cwlth) in a number of contexts such as whether something may result in the substantial lessening of competition[39] or whether substantial loss or damage is caused to a business.[40] In a series of cases concerning these provisions the Federal Court has defined the term to mean “real or of substance”[41], “importing a greater rather than a less degree”,[42] and “more than trivial or minimal”.[43]
[39] S 45.
[40] S 45D.
[41] Cool & Sons Pty. Limited v. O'Brien Glass Industries Limited (1981) 35 A.L.R. 445 at p. 458; Hecar Investments No. 6 Pty. Limited v. Outboard Marine Australia Pty. Limited [1982] A.T.P.R. 43,699 at p. 43,705.
[42] Dandy Power Equipment Pty. Limited v. Mercury Marine Pty [1982] FCA ,14 September 1982.
[43] Tillmans Butcheries Pty. Limited v. Australasian Meat Industry Employees' Union (1980) 42 F.L.R. 331.
“Probative value” itself is defined in the Uniform Evidence Acts[44] as meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of the particular fact in issue. In R v Lockyer Hunt CJ at CL described probative value pursuant to this definition as the degree of relevance a piece of evidence has to the particular fact in issue.[45]
[44] See the Dictionaries to the Evidence Act 1995 (Cwlth) and the Evidence Act 1995 (NSW).
[45] (1996) 89 A Crim R 457 at 459.
The phrase “substantial probative value” has been considered on several occasions in the context of the Uniform Evidence Acts. In R v RPS[46] the NSW Court of Criminal Appeal observed that the word “substantial” in the Evidence Act 1995 (NSW) plainly imposes a limit on the scope of cross-examination available at common law. That court said that material that “could rationally affect the assessment of the credit of a witness” would have substantial probative value, although it must be recognised that the case dealt with a statutory provision which used the concept of probative effect in setting a limitation on cross-examination affecting credit.
[46] [1997] NSWCCA, Gleeson CJ, Hunt CJ at CL and Hidden J, 13 August 1997.
In R v RPS numerous examples of what would not have “substantial probative value” were given[47].
[47] For example in the complainant’s evidence in chief, she has given as a reason for not complaining earlier the appellant’s statement to her that “this is our secret”. Her statement said “I didn’t tell anyone because he told me not to tell anyone”. The complainant agreed that this passage did not suggest that he had told the police that the appellant had said “It’s our secret”. The court said that whether she had said that she had been told to say nothing or that it was their secret provides nothing of substantial probative value of the credit of the witness.
In R v Lockyer[48] Hunt CJ at CL observed that the phrase “substantial probative value” requires a higher standard of relevance than “significant probative value”, which itself connotes something more than mere relevance.
[48] (1996) 89 A Crim R 457 at 459.
Whilst these are definitions based in interstate and Commonwealth statute and obviously not legally applicable in this case, they are of some potential use in indicating what might be a coherent and consistent use for the expression in a South Australian statute in pari materia.[49] There is indeed some similarity, in that the Uniform Evidence Acts use the phrase to restrict cross-examination as to credit, and the South Australian Act uses it to restrict probative cross examination as well, as distinguished from credit. Matters relating to credit are dealt with by the separate concept of “substantially reduce the credibility of the evidence”. I deal with that concept shortly.
[49] Statutory Interpretation in Australia, Geddes 6th edn, 1996, at [3.38].
Drawing these threads together, in my view cross-examination has substantial probative value if it could rationally affect the assessment of the probability of a material fact in issue in the case. It will be a material fact in issue in the case if, for example, that fact is realistically at issue and is relevant to the proof of at least one element of an offence charged.
In my view the court is not required to predict whether the evidence will be probative specifically of guilt or of innocence, only that it is likely to be probative, one way or the other.
If s 34CA required that a court be able to predict the exact type of probative material likely to be elicited by the cross-examination on a specified topic, for example that cross examination on topic A would be probative of innocence because answer X will probably be elicited, then the section would virtually never be able to be satisfied. Specific outcomes from cross-examination are notoriously hard to predict and hence no such specific identified outcome is ever “likely to (be) elicit(ed)” within the meaning of s 34CA(2). Such an interpretation would therefore render the section’s ostensible protection of the fundamental common law right to cross-examine essentially nugatory. In the absence of the clearest of words, that outcome is unlikely to have been intended.
Indeed legislation altering the common law and restricting common law rights should be construed as doing so only so far as is necessary to give effect to the expressed legislative purpose.[50] Such an interpretation would also pose a legislative test that in practice could hardly ever be satisfied. In the absence of the clearest of words to that effect, that outcome is also unlikely to have been intended.[51]
[50] Bropho v WA (1990)171 CLR 1 at 18; Thompson v Australian Capital Television Pty Ltd (1994) 127 ALR 317 at 329.
[51] Hinton v Lower (1971) 1 SASR 521 per Wells J at 528.
Accordingly in my view the section cannot require that a court be able to predict the exact type of probative material or a specific probative effect that is likely to flow from the proposed cross examination. It will be enough if it is likely that cross examination will elicit material of some type, kind or effect that, whatever it is, is likely to be of substantial probative value or substantially reduce credibility.
The section must require a court to look at a proposed topic of cross examination against the whole known or anticipated evidential backdrop in the case, the core issues for determination, the areas of major dispute, whether the topic concerned is central or peripheral, and make an assessment as to whether cross examination on that topic is likely to elicit material of substantive probative value or material that would substantially reduce the credibility of the evidence.
Given the impossibility of predicting specific outcomes, that test will often be satisfied if the court comes to the view that the cross-examination is likely to materially assist the court to determine the case, one way or the other, by eliciting such material.
Expressed another way, and at the risk over oversimplifying the task, a court should look at the proposed area of cross-examination, and ask whether having cross examination on that topic is likely to help it decide the case by eliciting such material. In core areas of fundamental dispute the answer may often be yes, in peripheral, uncontroversial or speculative areas the answer is more often likely to be no.
In undertaking this task it is appropriate to be mindful of the fundamental importance and utility, proven over the centuries, of cross-examination in effectively testing the evidence of a witness and ascertaining the truth.
Wigmore described its value in the following terms; [52]
The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be sued as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience.
Not even the abuses, the mishandlings, and the puerilities which are so often found associated with cross-examination have availed to nullify its value. It may be that in more than one sense it takes the place in our system which torture occupied in the mediaeval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth.
… If we omit political considerations of broader range, then cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial procedure.
Striking illustrations of its power to expose inaccuracies and falsehoods are plentiful in our records; and it is apparent enough, in some of the great Continental trials, that the failures of justice could hardly have occurred under the practice of effective cross-examination.
[52] Evidence in Trials at Common Law, Wigmore Vol 5 para 1367, 1974.
Substantially reduce the credibility of the evidence
I turn now to the other basis upon which cross-examination will be permitted, where the cross-examination is likely to elicit material that “would substantially reduce the credibility of the evidence”. I take this to mean cross-examination as to credit, as it is drafted in tandem with criteria regulating cross-examination concerning “probative” material which is material relevant to the proof of facts in issue.
The Uniform Evidence Acts give some indication as to what that legislation regards as substantially probative for the purposes of allowing cross-examination as to credit. Those matters include whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, general regard to the period that has elapsed since the acts or events to which the evidence relates were done or occurred, where there is other evidence available that the witness is biased or has a motive for being untruthful or has made a prior inconsistent statement or has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law to tell the truth. [53] Those provisions are of course not directly relevant, except in the very limited way earlier expressed. They do nonetheless represent some good examples of topics of cross-examination likely to be relevant to the credit of a witness.
[53] Ss 103 and 106 of the Commonwealth and NSW Evidence Acts (1995).
Section 34CA(2) of the Act does however raise the bar considerably in relation to cross-examination relevant to credit.
Whereas cross-examination as to factual issues can be “probative” within the meaning of s 34CA(2) of the Act whether probative of guilt or innocence, this second limb relating to credit requires not merely that the cross-examination is likely to be substantially relevant to credit, but that to be allowed it must be likely to substantially reduce it. It will for example not permit cross-examination on a topic relevant to credit if a court were of the view that answers would likely be substantially relevant either to bolster or reduce the credit of the witness, but it could not predict in advance which. It will only allow cross-examination as to credit where a prediction can be made that the credit of the witness would be reduced. This requires a court to predict the effect of cross-examination with some particularity, and in many this cases will not be an easy task.
In some cases, as here, there may be little procedural difficulty in defence counsel drawing attention to a topic by way of a document either on file or easily produced to the court, and indicating that the document or its contents will be put to the witness, and the court using its experience to assess how likely it is that such a process and such a document or its contents may affect the witness’ credit. In other cases the procedural and predictive processes might be more complex and challenging, depending what the credit issue is and how choate or speculative the factual basis for it is.
I turn to apply these criteria to the topics upon which defence counsel sought to cross examine the complainant.
Is the proposed cross-examination likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence
Defence counsel made application for permission to cross-examine the complainant in relation to four categories of information.
Firstly, defence counsel submitted that the defence case was that the events never happened at all, that the allegations against the accused had been made up, and accordingly sought permission to cross-examine the complainant on that topic and in particular suggest to her that she had fabricated all the allegations she had made against the accused.
Secondly, defence counsel submitted that the defence case was that the complainant and her sisters had decided to fabricate the allegations against the accused to extract money from him as a way of alleviating their extremely difficult family circumstances and accordingly sought to cross-examine the complainant on that topic.
Thirdly, defence counsel sought permission to cross-examine the protected witness as to why, when the accused allegedly approached her in 2009 whilst the accused was on bail for, amongst other things, some of the alleged offences of a sexual nature against her, she got into the car with him rather than immediately running to the police or speaking to the police. The probative value of the material that that cross-examination might elicit, he submits, is relevant to whether the earlier offence was committed. The submission is ‘why would she get into the car with him if in fact he had unlawful sexual intercourse with her the year before?’ The potential probative effect therefore being that getting into the car might be indicative that in fact the earlier offence was not committed.
In my view cross-examination on each of those three topics is likely to elicit material of substantial probative value, almost whatever the response is.
The first two topics go to the very core of the factual divide in the case. The third is in my view a significant issue, the answer to which is likely to throw light on her attitude to and feelings about the accused at that time, which in turn is highly relevant to whether the previous alleged offence occurred.
The responses may be highly credible denials and explanations and hence probative of guilt. In other words a convincing denial that she was making the offences up, a convincing denial that she or her sisters had any financial motive, or evidence that perhaps explained how she couldn’t or wouldn’t have had such a motive, and a cogent even compelling explanation of why she felt constrained to get in the car, are all potentially substantially probative of guilt.
On the other hand there might be an unconvincing, inconsistent, illogical or even no explanation given, and that might substantially reduce the probative effect of her statement. In that instance the cross-examination would therefore be potentially substantially probative of innocence.
It is possible, although experience says less likely, that cross-examination on any of these core topics might result in the complainant recanting her position on that topic. Any such recantation in relation to such a core topic would be highly probative of innocence.
Finally, it is of course possible that the nature of her answers may, if you like, have a neutral effect, ie, they neither advance nor damage the strength of the prosecution allegations.
I cannot predict which of those effects will occur, nor which is individually more likely than the other to occur.
Overall however, my long experience in the law tells me that cross examination concerning core topics such as this, in a case like this, is more often than not of substantial probative value in that more often than not it materially affects the strength of the evidence one way or the other. In my opinion there is a substantial chance that cross-examination on these points could rationally affect the assessment of the probability of material facts in issue relevant to the proof of the events charged.
Accordingly pursuant to s34CA(2) I grant permission for defence counsel to cross-examine on these three topics.
The final matter where permission is sought to allow a protected witness to be cross-examined concerns allegations of anal intercourse the complainant made in her police interview against the accused. Mr Stokes has, with the consent of the DPP, read to me departmental records containing a report of anal intercourse apparently made by the complainant in October of 2005 at the time the complainant was aged six. That report concerned a cousin and the complainant, quite unrelated to this case. The submission is that in one of the interviews with the protected witness tendered pursuant to s 34CA, she recounts an uncharged act or acts of anal intercourse committed by allegedly this accused.[54] It is submitted that she could be, as it were, grafting the knowledge of anal intercourse gained from the 2005 event to the accused and making the new allegation thereby.
[54] The passage appears at p.64 of MFIP6, the aide-mémoire of the 17 June 2008 statement by the complainant.
There is no material before the court to indicate that she has necessarily or even possibly done that. The submission simply is ‘Here is an event from some years before which indicates she knows about anal intercourse therefore she may have used that to make up the anal intercourse allegation against this accused.’
In today’s media and communication rich society there are innumerable ways that a 9 year old person can be aware of anal intercourse beyond being subjected to it by a cousin.
Further, the facts that were read out to me that relate to that event in 2005 have a material dissimilarity. The allegation in that case, as I recall it being read to me, was that a cousin put his penis in the complainant’s anus so that she could still remain a virgin. So there is some difference in the accounts, and there is also no evidence that she has drawn that in aid of fabricating a subsequent uncharged allegation of anal intercourse.
In my view cross-examination on that topic does not satisfy the test articulated by s34CA(2) and accordingly I refuse permission to cross-examine on that topic.
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