SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v P, G
[2019] SASCFC 7
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Lovell)
25 January 2019
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS - OTHER MATTERS
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - CHILDREN
Appeal against conviction.
The appellant was convicted following a trial in November 2017 before a judge and jury in the District Court of maintaining an unlawful sexual relationship with a child contrary to section 50 of the Criminal Law Consolidation Act 1935.
The Judge admitted pursuant to section 13BA of the Evidence Act 1929 evidence by the complainant in the form of audio visual records of interviews conducted in February 2015 and July 2016.
The appellant appeals and applies for permission to appeal against his conviction on five grounds:
1. The Judge erred by failing to give a direction in the nature of the warning in section 9(4) of the Evidence Act.
2. The Judge erred by failing to direct the jury as to the status, and the permissible and impermissible uses, of the recorded interviews.
3. The Judge erred by failing to direct the jury in accordance with section 34D of the Evidence Act in relation to the recorded interviews.
4. The Judge erred by failing to direct the jury in accordance with section 12A of the Evidence Act in relation to the complainant’s evidence or alternatively to direct the jury to scrutinise her evidence with special care.
5. The verdict is unreasonable or cannot be supported having regard to the evidence.
Held per Blue J (Kelly and Lovell JJ agreeing) granting permission to appeal but dismissing the appeal:
1. Section 9(4) of the Evidence Act does not apply to evidence in the form of audio visual records of interviews admitted pursuant to section 13BA (at [31]) and there is no basis to imply an obligation to give a warning in similar terms to the jury (at [37]).
2. The Judge gave to the jury a warning as required by section 13BA(6)(b) before admission of the evidence and in the circumstances it was not necessary to repeat that warning during summing up (at [45], [50] and [52]). The Judge was not required to further direct the jury as to the status, and the permissible and impermissible uses, of the recorded interviews (at [56], [58] and [61]).
3. Section 34D of the Evidence Act does not apply to evidence in the form of audio visual records of interviews admitted pursuant to section 13BA (at [71]).
4. The exception in section 12A(1)(b) of the Evidence Act permitting a warning that it is unsafe to convict on a child's uncorroborated evidence did not apply (at [112]). The Judge…
Continue reading R v P, G
Sign in free to access the full text
Details
- AGLC
- R v P, G [2019] SASCFC 7
- Case
- [2019] SASCFC 7
- Decision Date
CaseChat Overview and Summary
This matter came before the Full Court of the Supreme Court of South Australia, comprising Kelly, Blue and Lovell JJ, on appeal from a conviction. The appellant, the father of the complainant, was charged with sexual offences against his daughter. The prosecution's case was that the appellant had licked and touched the complainant's vagina on multiple occasions during access visits between November 2011 and March 2013. The complainant gave evidence of these events and also of later discovering and viewing disturbing pornography online, which led her to understand that the appellant's conduct had been wrong.
The appeal raised several grounds, including issues concerning the admissibility and use of recorded interviews with the complainant, who was a child. Specifically, the appellant contended that the trial judge erred by failing to direct the jury on the permissible and impermissible uses of the recorded interview evidence, and by not providing a direction regarding the weight to be given to the complainant's repeated allegations. The appellant also raised a complaint regarding the directions given concerning evidence of complaint made to the complainant's mother.
The Full Court dismissed the appeal. Regarding the recorded interviews, the Court found that section 13BA of the Evidence Act 1929 (SA) does not mandate a direction on the permissible and impermissible uses of such evidence, unlike section 34R of the Act concerning discreditable conduct evidence. The appellant did not identify any specific impermissible uses that warranted a warning, nor had defence counsel requested such a direction at trial. The Court also held that the mere repetition of allegations does not necessarily enhance credibility, and this is a matter within a jury's ordinary experience, not requiring specific judicial direction. Furthermore, the trial judge had provided directions on the use of complaint evidence in accordance with section 34M of the Act, and the appellant had not demonstrated why these directions were inadequate or requested further directions.
The appeal raised several grounds, including issues concerning the admissibility and use of recorded interviews with the complainant, who was a child. Specifically, the appellant contended that the trial judge erred by failing to direct the jury on the permissible and impermissible uses of the recorded interview evidence, and by not providing a direction regarding the weight to be given to the complainant's repeated allegations. The appellant also raised a complaint regarding the directions given concerning evidence of complaint made to the complainant's mother.
The Full Court dismissed the appeal. Regarding the recorded interviews, the Court found that section 13BA of the Evidence Act 1929 (SA) does not mandate a direction on the permissible and impermissible uses of such evidence, unlike section 34R of the Act concerning discreditable conduct evidence. The appellant did not identify any specific impermissible uses that warranted a warning, nor had defence counsel requested such a direction at trial. The Court also held that the mere repetition of allegations does not necessarily enhance credibility, and this is a matter within a jury's ordinary experience, not requiring specific judicial direction. Furthermore, the trial judge had provided directions on the use of complaint evidence in accordance with section 34M of the Act, and the appellant had not demonstrated why these directions were inadequate or requested further directions.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
A single Judge granted permission to appeal on the fifth ground listed above, considered that ground 3 raises a question of law on which permission is not required and referred to the Full Court the question whether permission should be granted on the remaining grounds.Background The complainant is the daughter of the appellant. She was born in January 2004. Her parents separated in 2007, after which she resided primarily with her mother. In November 2011 the appellant commenced residing in the house at which the conduct the subject of the charge allegedly occurred (the appellant’s house). Between November 2011 and March 2013 the complainant and her brother were left in the appellant’s care every second week from the conclusion of school on Friday until the commencement of school on Monday, during the alternate week from the conclusion of school on Monday until the commencement of school on Tuesday, and for portions of school, Easter and Christmas holidays. In March 2013 the access visits were suspended for two months and when they resumed they only included one overnight per fortnight and after September 2013 did not include any overnights. After February 2014 there were no access visits. The prosecution case was that the appellant licked and touched the complainant’s vagina on multiple occasions during access visits to the appellant’s house over part of the date range between November 2011 and March 2013. The complainant gave evidence that on occasions when she stayed overnight with the appellant he licked her vagina. She said that this occurred on multiple occasions and that usually afterwards the appellant washed her private parts with the showerhead while she was standing in the bath. She did not understand the significance of this at the time and did not understand that it was wrong. The appellant told her not to tell anyone. By the time the access visits were suspended the appellant’s conduct had stopped. The complainant gave evidence that later she heard girls at school talking about porn and did not know what it was. She looked on a porn site using the family iPad by “googling” the word “porn” and saw images of adult women performing cunnilingus on each other which stuck in her head and which she found disturbing. The complainant gave evidence that she spoke to a family friend about what she saw on the porn site, who told her that it was a bad thing. What she saw on the porn site reminded her of what had happened with the appellant and she realised that it had been wrong. The family friend gave evidence that in October 2014 he noticed an abrupt change in the complainant’s mood. She was normally very chatty and bubbly but was now morose and silent. A couple of weeks later she asked to speak to him in private and told him that she had viewed some pornographic images. She was quite distressed and crying. She said something to the effect “Do people really do that?” He suggested that she speak to her mother about it and she agreed to his mentioning it to her mother and then to speak to her mother herself. He spoke to her mother a couple of days later.
Evidence
Evidence Before The Court
Section 13BA provides:13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings(1)Subject to this section, the court may, in the trial of a charge of an offence order that the evidence of a witness be admitted in the form of an audio visual record.(2) An application for an order under subsection (1) must—(a) be made in writing by the party wishing to have the audio visual record of the evidence admitted in the trial; and(b) be filed in the court; and(c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and(d) otherwise be made in accordance with the rules of court.(3)An audio visual record of the evidence of a witness may be admitted under this section if—(a) the recording has been made pursuant to—(i) section 12AB; orii) Part 17 Division 3 of the Summary Offences Act 1953; and(b) the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and(c) the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and(d) during the course of the trial, the witness is available, if required, for further examination, cross‑examination or re‑examination.(4)The court's discretion to exclude evidence is not affected by subsection (3) and the court may—(a) rule as inadmissible the whole or any part of the recording; or (b) before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.(5)Despite subsection (3)(d), the witness cannot be further examined, cross‑examined or re‑examined on the evidence admitted in the trial without the permission of the court which may only be given, on application by a party to the proceedings—(a) if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or(b) if the witness gives evidence in the trial apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross‑examined or re‑examined; or(c) if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross‑examined or re‑examined.(6)If a court admits evidence in the form of an audio visual record under this section, the judge must—(a) explain to the jury that the law allows the court to admit evidence in this form; and(b) warn the jury—(i)not to draw from the admission of evidence in that form any inference adverse to the defendant; and(ii)not to allow the admission of evidence in that form to influence the weight to be given to the evidence. The second interview was conducted, and the first interview was deemed[9] to have been conducted, in accordance with Part 17 Division 3 of the Summary Offences Act. For ease of reference I refer to interviews deemed to have been conducted in accordance with that Division as if they were conducted in accordance with that Division. That Division relevantly provides:[9] By subclause 1(1) of Schedule 1 to the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) as amended by section 27 of the Statutes Amendment (Attorney General's Portfolio) Act 2016 (SA).Division 3—Recording interviews with certain vulnerable witnesses74EA—Application and interpretation(1) This Division applies to a person being interviewed as a potential witness who is—(a) a child of or under the age of 14 years; or(b) a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.(2) In this Division—serious offence against the person means—…(c) a sexual offence; or…74EB—Obligation to record interviews with certain vulnerable witnessesIf a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of a serious offence against the person, the interview must be conducted as follows:(a)an audio visual recording of the interview must be made in accordance with the regulations;(b) the interview must be conducted by a prescribed interviewer;(c)the manner in which the interview is conducted must meet the prescribed requirements to the prescribed extent.74EC—Admissibility of evidence of interview(1)In proceedings for a charge of a serious offence against the person, evidence of an interview between a prescribed interviewer and a person to whom this Division applies is inadmissible unless—(a) the prescribed interviewer complied with this Division in relation to the conduct and recording of the interview; or(b) the court is satisfied that the interests of justice require the admission of the evidence despite the prescribed interviewer's non‑compliance.(1a)If a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of any other offence, evidence of the interview may be admissible under section 13BA of the Evidence Act 1929 if—(a) an audio visual recording of the interview is made in accordance with the regulations; and(b) the interview is conducted by a prescribed interviewer; and(c) the manner in which the interview is conducted meets the prescribed requirements to the prescribed extent.(1b)If a prescribed interviewer's conduct and recording of an interview does not meet the requirements of subsection (1a)(c), the court may nevertheless admit evidence of the interview if satisfied that the interests of justice require the admission of the evidence despite the prescribed interviewer's non‑compliance.(2)If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b) or (1b), the court must—(a) draw the jury's attention to the non‑compliance by the prescribed interviewer; and(b) give an appropriate warning in view of the non‑compliance,unless the court is of the opinion that the non‑compliance was trivial.
Decision
Reasons for decision
In the present case, the appellant’s complaint is put at the generic level rather than a complaint that the Judge did not direct the jury’s attention to a specific feature of the recorded interview evidence. In the different context of ground 5, the appellant contends that one of the questions during the first interview was leading but in reality it was hardly leading and was an isolated question. No request was made by defence counsel for a direction relating to evaluation by the jury of the interviews. In the circumstances there was no requirement for the Judge to comment on evaluation by the jury of the interview evidence.Other matters and conclusion The appellant complains that the Judge failed to direct the jury as to the permissible and impermissible use of the recorded interviews. The appellant cites the decision of this Court in R v Perara-Cathcart[20] in which it was observed that a failure to direct a jury as to the permissible and impermissible uses of discreditable conduct evidence as required by section 34R of the Act is an error of law. However, unlike section 34R, section 13BA does not require a direction as to the permissible and impermissible uses of recorded interview evidence. The appellant does not identify any impermissible uses of the recorded interview evidence about which the jury should have been warned. No request was made by defence counsel at trial for such a direction. There is no merit in this complaint. [20] [2015] SASCFC 103 at [12]-[18] per Kourakis CJ and [56] per Stanley J. The appellant complains that the Judge did not direct the jury whether it was or was not entitled to reason that the complainant’s allegations were to be given extra weight because they were repeated on multiple occasions, namely in evidence of complaint to the complainant’s mother, during the two recorded interviews and during the complainant’s testimonial evidence. The appellant does not identify why a direction was required in the particular circumstances of this case. No request was made by defence counsel at trial for such a direction. The fact that mere repetition of a story does not necessarily enhance its credibility is a matter that is within a jury’s ordinary experience: it does not fall into that category of matters where the court has esoteric knowledge and experience that should be communicated to the jury so that it does not fall into erroneous reasoning. There is no merit in this complaint. The appellant makes a faint complaint that the Judge did not direct the jury as to the use that could be made of the evidence of complaint to the complainant’s mother which was admitted pursuant to section 34M of the Act. The Judge gave directions as to the permissible and impermissible uses of the complaint evidence in the terms required by section 34M(4)(a) and (b). The appellant does not identify why the Judge’s directions were inadequate in this respect. No request was made by defence counsel at trial for any further direction. There is no merit in this complaint.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.