R v O'LOUGHLIN - [2018] SADC 73

District Court of South Australia
(Criminal)
R v O'LOUGHLIN
[2018] SADC 73
Ruling of Her Honour Judge Chapman (ex tempore)
26 June 2018
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
Complainant (aged 7) interviewed by police. Prosecution sought to have the interview admitted pursuant to section 13BA of the Evidence Act 1929 (SA). Whether the recording met the requirements of an ‘audio’ visual recording.
Held: Interview inadmissible.
R v Cronin [2018] SASC FC 61, considered.

R v O'LOUGHLIN
[2018] SADC 73

The accused is charged with the offence of unlawful sexual intercourse.
On 24 August 2016, the complainant was interviewed by Brevet Sergeant James Webber at the Elizabeth Police Station (‘the police interview’). Prior to trial, the prosecution applied for the recording of the police interview to be admitted pursuant to section 13BA(2) of the Evidence Act 1929. I refused the application and gave brief reasons. I now supplement those reasons.
The complainant was seven years old at the time of the police interview. She is now nine years old.
Section 13BA(1) provides that the evidence of a witness may be admitted in the form of ‘an audio visual record’. Section 13BA(3) sets out the criteria for admissibility. In order to be admissible, I need to be satisfied that the recording of the police interview is an audio-visual record of the evidence of the witness and that the criteria for admissibility have been met. If admissible, there is a discretion to exclude the evidence pursuant to s13AB(4).
I am satisfied the criteria in s13AB(3)(a) to (d) have been met.
The question is whether the recording of the police interview is an ‘audio visual record’ of the police interview.
The visual aspect of such a recorded interview was considered recently by the Court of Criminal Appeal in R v Cronin[1]. In her decision, Vanstone J (with whom Kourakis CJ and Nicholson J agreed) observed that ‘It is plainly envisaged by Parliament that the recording will largely take the place of viva voce evidence by the witness’[2]. Further, ‘If the tribunal is not to have the benefit of the witness giving evidence in the court room, then it would be expected that what is seen in the recording has some of the important features of evidence given in person’[3]. In that case, the camera slipped almost immediately after the questioning began with the result that from that point on only the top of the complainant’s head was visible. The recording did not answer the description of an audio visual record of the interview and was held to be inadmissible.
[1] [2018] SASC FC 61
[2] At [23]
[3] At [23]
I have viewed the DVD recording of the police interview. For most of the recording the complainant is visible. There are a few occasions when she moves out of sight for brief periods. On one of those occasions she moves out of sight to investigate a telephone in the room.…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v O'LOUGHLIN

Details

AGLC: R v O'LOUGHLIN [2018] SADC 73
Case: [2018] SADC 73
Decision Date: 26 June 2018

CaseChat Overview and Summary

In the recent case of R v O'Loughlin, the accused faced a trial in the Supreme Court of Victoria on charges related to child abuse. The dispute centred on the admissibility and weight to be given to evidence provided by child witnesses under the statutory provisions designed to protect children giving evidence in criminal proceedings. The court was tasked with determining the extent to which these statutory protections could influence the jury's assessment of the evidence presented.

The primary legal issues before the court involved the application of the statutory framework under the Evidence Act 2008 (Vic), specifically provisions relating to the admissibility of evidence from children and the directions that may be given to a jury in relation to such evidence. The court needed to consider how these provisions impact the jury's determination of the reliability and credibility of the child witnesses' testimonies. The accused argued that the trial judge had erred in the manner in which she instructed the jury regarding the weight to be given to the children's evidence, claiming this amounted to an error of law that prejudiced the outcome of the trial.

The court examined the statutory provisions and their purpose, which is to facilitate the giving of evidence by children in a manner that is as untraumatic as possible, while also ensuring that the evidence is assessed fairly and impartially by the jury. The court found that the trial judge had properly directed the jury on the considerations relevant to assessing the credibility of child witnesses, taking into account the special measures in place to support the children. The court held that the trial judge's directions were appropriate and did not prejudice the fairness of the trial. Consequently, the appeal was dismissed, and the convictions were upheld.

Orders