R v Morris

The case of R v Morris involved a reference by the Attorney-General under section 669A of the Criminal Code, concerning a charge of rape on a child under 12 years of age. The accused was charged on or about 7 December 1993. The trial judge excluded medical evidence concerning the condition of the complainant's hymen and later excluded a video recording of a police interview with the complainant under section 93A of the Evidence Act. The Crown indicated it would not proceed further on the indictment following the exclusion of the video recording, leading the trial judge to order a "perpetual stay of proceedings." The Attorney-General sought opinions on the correctness of the evidentiary rulings and the stay.

The court considered whether the trial judge correctly exercised his discretion to exclude the medical evidence and the video recording. Regarding the medical evidence, the court held that the trial judge erred in excluding it as its probative value outweighed its prejudicial effect. The probative value of the evidence was significant in establishing the condition of the complainant's hymen, which was at least consistent with penetration. The prejudicial effect was not such that it would damage the fairness of the trial.

As for the video recording, the court found the trial judge's exclusion of it incorrect. The recording was admissible under section 93A of the Evidence Act, and the trial judge's discretion to exclude it under section 98 was not properly exercised. The court noted that the discrepancies in the complainant's recall of events were expected in child witnesses, and the purpose of section 93A was to avoid difficulties in extracting evidence from young witnesses in court. The prospect of an unsafe and unsatisfactory conviction was not a valid ground for exclusion.

Regarding the stay, the court concluded that no question of law arose, as the Crown had clearly indicated it would not proceed further. The court answered the reference questions, finding that the trial judge was incorrect in excluding the section 93A statement and that it was not necessary to answer the other questions.