R v O'LOUGHLIN
[2018] SADC 73
•26 June 2018
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. On another occasion she demonstrates that she was lying on her tummy in relation to one of the allegations out of the sight of the camera. In my view, those few brief periods are not such that they disqualify the recording from coming within the meaning of a ‘visual’ recording of the interview.
The audio of the recording of the police interview is a different matter. There is audio for the entire recording. It does not cut out at any point. However, in my view, it does not automatically follow from that fact alone that the recording answers the description of an audio visual recording. Because the recording will largely take the place of the complainant’s evidence, I consider that both the visual component and the audio component will need to meet some of the important features of evidence given in person.
There are some occasions during the interview when the complainant’s voice is difficult to hear because she is speaking softly. That may be due to the placement of the microphone in the room. There are also multiple occasions when what the complainant says is indecipherable. I think that is a combination of her speaking softly at times during parts of her answers as well as very quickly and not completing sentences. Occasionally, the interviewer endeavours to repeat what she has said.
I have listened to the interview a number of times without the transcript. There are multiple times when I am unable to discern what the complainant has said. Those times include the complainant speaking about the allegations. The transcript itself has multiple instances of ‘……’ and ‘…..?......’ indicating that what has been said cannot be discerned by the person listening for the purpose of transcribing the conversation.
Finally, I listened to the interview with the transcript. I was able to discern some further parts of the interview. However, I am concerned about the suggestibility of the transcript in that regard, particularly when it is the recording that is the evidence, not the transcript. Also, there are multiple occasions when the transcriber has attributed words to the complainant with which I do not agree. The identification of some of the words may well be the subject of debate.
The prosecutor suggested that one possibility is to edit the recording to delete those portions that are inaudible or indecipherable. Defence counsel opposes such a course. Because of the number of occasions when the audio is challenging, I think such a course will distort the ability of the jury to assess the complainant’s evidence. The complainant is a young child who needs to be observed and listened to carefully. It could be relevant to the jury that she appears to give some answers at times that do not address the question, although some parts of those answers are indistinct.
In all of the circumstances in this case, my view is that the audio visual recording does not meet the audio requirements that one would expect of a recording that is to become the evidence of the complainant in this case. It is unsatisfactory that the jury may be diverted by spending time debating what was said by the complainant rather than assessing the credibility and reliability of what she said. Further, if the jury asked the court for clarification as to what the complainant said at times during the police interview (which becomes her evidence), it is unlikely the court would be able to provide the answer.
I am mindful of the objective of Parliament in enacting these provisions. There is a strong public interest in young children not having to come to court at all when the matter is listed for trial some time later and if they are required, for the duration of their evidence to be kept to a minimum. However, in my view, if an interview is considered by the police or DPP at an early stage to be of insufficient audio or visual quality to be admitted pursuant to s13BA(3)(a)(ii), there are alternatives available. The police or the DPP may require a further interview to be conducted for a s13BA(3)(a)(ii) purpose or consider utilising s12AB, rather than have the complainant wait for a listed trial date.
I am also mindful of the difficulties of interviewing a young child. However, if the interview is to become the evidence of that child, it is crucial that the child is both heard and capable of being understood. Asking the child to slow down, repeat what they said or use a big voice can have their own challenges in such an interview but are necessary in order for the evidence to meet the audio requirements for evidence in a criminal trial.
In my view, the audio visual recording of the police interview is inadmissible pursuant to s13BA(3)(a)(ii).
If I am wrong and the simple existence of sound is sufficient for the recording to meet the description of an audio visual recording, regardless of quality, then I would exercise my discretion to exclude the recording of the police interview pursuant to s13BA(4) on the basis that its admission would be unfair to the accused. There are significant parts of that recording which are difficult to discern. In this case, I am also mindful that there is one count of unlawful sexual intercourse with one uncharged act. There is not a lengthy course of conduct to be the subject of evidence from the complainant.