R v Paterson

[2022] SADC 80

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v PATERSON

[2022] SADC 80

Reasons for Ruling of her Honour Judge Telfer 

22 April 2022

CRIMINAL LAW - EVIDENCE – ADMISSIBILITY - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE

Prosecution application to admit the evidence of a witness in the form of an audio-visual record pursuant to s 13BA of the Evidence Act. Consideration of whether the audio-visual record could properly be characterised on an audio-visual record of the evidence of a witness. The recording was criticised on the basis that witness face was obscured by hair on regular occasions through the interview.

Interview admitted pursuant to s 13BA(1).

Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 74EB, 74EC and 13AB(3); Summary Offences Act 1953 (SA) Part 17, Division 3, referred to.
R v Cronin [2018] SASCFC 61, considered.

R v PATERSON
[2022] SADC 80

1. The accused is charged with one count of maintaining an unlawful sexual relationship with a child.  It is alleged that between the 1^st of September 2019 and the 31^st day of December 2020 he maintained an unlawful sexual relationship with ED, a child who was between the ages of 6 and 7 at the relevant times.

2. The accused has elected for trial by Judge alone pursuant to section 7 of the Juries Act.

3. The prosecution have filed an application pursuant to s 13BA of the Evidence Act for an order that the evidence of the witness ED be admitted in the form of an audio-visual record. Counsel for Mr Paterson argues that the recording is not admissible, as it does not satisfy the pre-conditions of s 13BA.

4. In order to be admitted, an audio-visual record of the evidence must have been made in a pre-trial special hearing pursuant to s 12AB of the Evidence Act, or be made pursuant to Part 17, Division 3 of the Summary Offences Act. Part 17, Division 3 provides for the recording of interviews conducted with certain vulnerable witnesses. The Division prescribes the circumstances in which an interview must be recorded, and the manner in which the interview must be conducted in order for it to be admissible in proceedings for a charge of a serious offence against a person.[1] Section 74EC provides that evidence of an interview conducted pursuant to Division 3 may be admitted pursuant to s 13BA 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.

   [1] Section 74EB and 74EC Evidence Act 1953.

5. It was not argued that the prescribed conditions had not been complied with in respect to the record.  I am satisfied that those conditions have been met.  It was argued that the recording did not satisfy the requirement of 13BA that it was appropriately characterised as an “audio-visual record of the evidence of a witness”.[2]

   [2] Section 13BA(3) Evidence Act 1953.

6. In R v Cronin, the Court of Criminal Appeal considered the meaning of that phrase in the context of a recorded interview which, due to an error on the part of the officer conducting the interview, comprised of a visual recording of the top of the witness’s head, and a section of the wall of the interview room.  Justice Vanstone observed that:

   It is plainly envisaged that the recording will largely take the place of viva voce evidence by the witness.  As counsel for the appellant put it, it will become the evidence of the witness.  In those circumstances the visual component contemplated by Parliament must surely be vision of the witness, rather than of the wall.  If the Tribunal is not expected to have the benefit of the witness giving evidence in the courtroom, then it would be expected that what is seen in the recording has some of the important features of evidence given in person.[3]

   [3] [2018] SASCFC 61 at [23] per Vanstone J

7. In the same matter, Chief Justice Kourakis observed that “an audio-visual record of an interview with a potential witness, in anticipation of its use as a substitute for the in-court testimony of that witness, must include both the ‘audio’ record of the spoken words and the ‘video’ record of the witness speaking those words.”[4]

   [4] Ibid at [3] per Kourakis J, Nicholson J agreeing.

8. The interview with EB was undertaken on 5 February 2021 at the Elizabeth Police Station.  Three people are visible on the screen of the recording: (from left to right as the viewer observes) Constable Shannen-Lee Gillis, Ms D, the Mother of EB and prescribed companion, and EB.

9. The camera position means that the best view is of Ms D seated in the middle. A side view of Constable Gillis and EB is available.  The view of EB however is compromised by the fact that EB regularly looks down to colour in a book in front of her, and she has thick hair which falls into her face obscuring the camera’s view of her face.  EB is only 7 years of age and physically small on the screen.

10. EB moves around during the interview.  At times Ms D moves her hair out of her face and behind her ear.  EB seats herself on her Ms D’s lap for a period of time allowing a better view of her face as she answers questions put to her.  The side view of her permits a good assessment of her body language overall.  Her position and the style of her hair does inhibit the viewers capacity to see her facial expressions at all times.

11. Mr Kirby, for the accused, argued that the inhibited view of ED’s facial expressions during the interview, coupled with the fact that some words are difficult to hear undermines the characterisation of the recording as an audio-visual record of the evidence of a witness.  He argued that if a witness giving evidence in the trial context presented in the same way it would be possible to intervene and ask her to move her hair out of her face or sit up and face the camera. 

12. I have viewed the interview carefully and I am satisfied that the sound quality is adequate for it to properly be characterised as an audio record of the evidence of the witness.  The more difficult assessment is whether the recording is a visual record of the evidence of the witness, demonstrating some of the important features of a witness giving evidence in the usual way.

13. The visual recording in this matter can be contrasted with the recording considered in R v Cronin.  A side view of EB’s face and body is visible at all times.  What is inhibited is a view of her facial expressions because her face is sometimes covered by her hair falling forwards.

14. ED’s hair is back when she makes the first disclosure at questions 80 – 111.  At question 133-134 the questioner asks her if she is OK.  I note that she is not visibly upset, but is speaking rapidly, playing with a jar of coloured pencils and becomes difficult to follow.  I do not agree with the defence submission that the view of her state of distress is inhibited in this portion.

15. In passages including from question 90-109, 129-134, 152-159, 168-182, 190-200, 207-218, 227-256, 279-298, 310-340, 356-385, 403-411, and 556-595 ED’s face is visible as she moves to a position where the camera picks up more of her facial features, or she moves her hair back.  There are other passages where her face is visible.

16. No doubt an important feature of the evidence of a witness given in the traditional way is the ability to see and assess the facial expressions which accompany the words spoken.  The legislative requirement for an audio-visual record reflects this.  I have considered whether the fact that ED’s hair obscures a view of her face at all times throughout the recording means that it cannot be characterised as a visual record of the evidence of a witness.

17. I am satisfied that it does meet that definition.  The position of the witness in the room is less than ideal, and her hair does obstruct a complete view of her facial expressions at times.  However, her position provides an enhanced view of her body language overall, and a good view of her as she moves to different positions around the interview table.  There is a side view of her face unobstructed by her hair throughout critical portions of the questioning.  I do not think that the fact that her facial expressions cannot be seen in some portions deprives the recording of the relevant characterisation.

18. I consider that the recording of the interview is admissible pursuant to section 13BA(1).

19. I have considered whether in the circumstances I ought to exercise my discretion to exclude the video because of the deficits identified.  I consider that the recording does provide the necessary opportunity to assess ED’s demeanour during the interview.  The camera position means that while the face is sometimes obscured, her body language and some occasions when she moves around are fully captured.

20. I would not exclude the interview in the exercise of the discretion.

21. I order that the interview with ED recorded on 5 February 2021 be admitted as the audio-visual record of the evidence of the witness.

22. An application was also made for the admission of the audio-visual record of the witness DL, the brother of ED.  I have viewed that recording and am satisfied that the pre-conditions to admissibility are satisfied.  I note that defence made no argument against admitting that record pursuant to 13BA and I order that it be admitted as an audio-visual record of the witness.

    Specific Objections

23. Mr Kirby made specific objections to some portions of the recorded interviews with EB and her brother DL.

24. The following objections were made:

Question Number – Interview with ED	Objection
2.1(a)	126-127	Hearsay
2.1(b)	475-481	Hearsay
2.1(c)	492-493	Hearsay/More prejudicial than probative
2.1(d)	501-503	Hearsay/More prejudicial than probative

1. I am satisfied that 2.1 (b), (c) and (d) are admissible and have non-hearsay relevance to the issues in the trial.  The probative force of that evidence outweighs any potential prejudice.  In respect to objection (a) defence argued that a finder of fact could conclude that it was the accused who had initiated the sleepovers, and that would be a hearsay use.  I do not read the witnesses answer in that way.  Subject to clarification of that answer if an application is made for further examination in chief, I would permit that portion to be led.

Question Number – Interview with DL	Objection
2.4(a)	66-70	Use of word “forced”
2.4(b)	88-90	Hearsay
2.4(c)	205-216	Use of word “forced”

1. Mr Kirby objected to certain portions of the interview with DL, the complainant’s brother.  He did so on the basis that his use of the word ‘forced’ in the interview must have been the result of coaching or repeating the words of others because he was unable to explain what the word meant.  In my view that is a proposition that can be explored in cross-examination and is not a basis on which I should exclude the evidence. 

2. Objection (b) is to the witnesses statement that “he wanted to look after us sometimes”, the basis for which is not explored.  As the basis for the answer is not explored, I would permit the portion to be led, subject to clarification if an application is made for further examination in chief.

3. There was an objection to portions of the statement of AD, the complainant’s Aunt and initial complaint witness.  In respect to paragraphs [4], [5] and [6] of the statement dated 14 April 2021 those paragraphs contain hearsay.  I understand that the prosecution do not seek to lead the detail of those paragraphs, but that she had some awareness that the accused was looking after ED and DL at regular times throughout the week.  I allow the evidence to be led in short form as outlined by the prosecutor, noting that the detail is hearsay and could not be sued as the truth of what is asserted.

4. Mr Kirby objected to the final line of paragraph 11 on the same basis.  I permit that sentence to be led on the same basis – that it informs why the witness AD went on to have a conversation with ED, which led to the initial complaint.