R v PRM - [2022] SADC 4

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PRM
[2022] SADC 4
Reasons for Ruling of his Honour Auxiliary Judge Barrett
19 January 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with Maintaining an Unlawful Sexual Relationship with his 4 year old granddaughter, and in the alternative, Unlawful Sexual Intercourse with her. The prosecution does not propose calling the complainant to give evidence but seeks to have admitted, pursuant to s 34LA of the Evidence Act, three out of court statements made by her to her parents.
Held:
The evidence of the three statements is admitted.
Evidence Act 1929 (SA), referred to.
R v Lobban (2001) 80 SASR 550; R v Haines [2016] SASC 96; R v Christie [1914] AC 545; R v J, JA (2009) 105 SASR 563; Gately v The Queen (2007) 232 CLR 208; R v Byerley (2010) 107 SASR 517; Hansard House of Assembly 6 May 2015 1039; R v H, T [2010] SASCFC 24; 108 SASR 86; R v Smiles (2018) 131 SASR 553; Wakeley v The Queen (1990) 64 ALJR 321, considered.

R v PRM
[2022] SADC 4

The accused is charged with Maintaining an Unlawful Sexual Relationship with a Child, and in the alternative, Unlawful Sexual Intercourse with a person under 14. The complainant is the granddaughter of the accused.
The offending is alleged to have been committed between January 2019 and February 2020.
In a notice pursuant to Rule 49 of the District Court Rules, dated 5 July 2021, the accused applies to have excluded from his trial evidence of three out‑of‑court statements made by the complainant.
Background
The accused is the father of the complainant's mother. He is aged 71. He lives quite close to the house where the complainant lives with her parents and two stepbrothers. To assist his daughter’s return to work the accused had been caring for the complainant two days a week from 2016, and then three days a week from 2018. From October 2019, he had been caring for the complainant principally in her family’s home.
The Out‑of‑Court Statements
As at February 2020, the complainant was four years five months old. In the course of the evening on Monday 10 February 2020, the complainant said things to her parents on three occasions which the prosecution submits are complaints of sexual abuse by the accused. The prosecution submits that they are admissible as the truth of their contents pursuant to s 34LA of the Evidence Act.
The first of the three conversations took place in the family’s bathroom at 8.23 pm.[1] The complainant’s mother had put her to bed shortly beforehand. The mother was in the bathroom when the complainant joined her. In the context of talking about the shower in the bathroom the complainant said “pa, licking, shower”. The mother sought clarification of what the complainant meant. She recorded on her mobile phone what the complainant said and did by way of explanation. The complainant demonstrated the licking of her vagina while she was on her back on the floor.
[1] Statement of TLM, 20 February 2020, paras 12 – 17.
The second conversation followed immediately from the first.[2] The mother asked the complainant to come from the bathroom into the lounge room and to tell her father what she just told her. The complainant repeated in front of both parents the demonstration of lying on her back on the floor and doing a licking motion. In answer to questions from her mother, the complainant said that the incident happened when her grandfather put a green towel on the floor for her to lie on. By way of further elaboration, she said the grandfather in question was her maternal (“pa”) rather than paternal (“o’pa”) grandfather. She went on to say “he likes it and so do I”.
[2] Statement of TLM, 20 February 2020, paras 18 – 22.
The third conversation occurred shortly after the second when the complainant was put back to bed by her father. The father had a conversation with her in the bedroom.[3] The father asked the complainant if he were to ask the grandfather whether what she had just told her parents was true or not, what would he, the grandfather, say. He offered the complainant a chocolate as a treat or incentive to tell the truth. The complainant replied that the grandfather would say ‘yes’. The father left the bedroom and returned a few minutes later. He told the complainant, falsely, that he had spoken to the grandfather about what the complainant had been saying, and the grandfather had said that it was not true. The complainant became upset. She was not given a chocolate.
[3] Statement of MRH, 21 February 2020 paras 13 – 14.
On the Crown case, that third conversation explains a fourth conversation two days later between the accused and the complainant. The first three conversations were on the Monday. The conversation between the accused and the complainant was on the next day that the grandfather looked after the complainant, namely the Wednesday. The defendant looked after the complainant on Mondays, Wednesdays and Fridays.
The fourth conversation was recorded on an audio visual camera which the parents had installed in the bathroom on the Tuesday[4] following the Monday when the three conversations took place.
[4] Statements of MRH, 21 February 2020, paras 28-29 and TLM, 20 February 2020, paras 33-34.
On the Crown case, this fourth conversation is an implied admission by the accused of the offending. The defence does not apply for the exclusion of this fourth statement, but it is meaningless without the first three being admitted.
The fourth conversation took place in the bathroom on the Wednesday. The complainant asked the accused why he had lied about licking her when she gets out of the shower or bath. The accused asked her what she had said and to whom. The complainant said that she had told her mother that he licked her when she gets out of the shower. The accused said, ‘… I told you not to tell anyone, that’s our secret’.
When the parents got home from work on the Wednesday afternoon, the accused asked first the father, then when she got home, the mother, about the conversation he had had with the complainant during the day. He asked the father why he was giving her chocolates to tell stories about him.
Between them, both parents told the accused what the complainant had told them. They told the accused that they doubted the truth of what she had said. At that stage, they had not viewed the footage from the camera which had been installed in the bathroom.
When they did see the footage, they reported the matter to the police.
The complainant was interviewed by police on 3 March 2020. The prosecution does not propose leading the evidence of this conversation.
The accused was arrested and interviewed on 12 March 2020. He exercised his right to silence.
The introduction of section 34LA of the Evidence Act
Section 34LA of the Evidence Act was introduced into the Parliament on 6 May 2015 by the then Attorney‑General, the Hon J R Rau. The purpose of the section was ‘to improve the position of vulnerable witnesses, namely children and persons with a disability within the criminal justice system, both in and out of court’.[5]
[5] Hansard, House of Assembly, 6 May 2015, 1039.
I reproduce the relevant part of the second reading speech:
(i)Amending the Evidence Act 1929 to repeal s 34CA and to insert a new provision, s 34LA, to provide for the admissibility as a limited exception to the hearsay rule of out of statements of a young child or a witness with disability in sexual cases where the witness is unavailable to be called to testify about the events in question owing to young age and/or disability.
The Bill deletes s 34CA of the Evidence Act 1929 and replaces it with a new s 34LA. Section 34CA has a long and complex history.
The present s 34CA was inserted in 2008 by the Statutes Amendment (Evidence & Procedure) Act 2008. It replaced the original version of s 34CA that was inserted into the Evidence Act 1929 in 1988 by the Evidence Act Amendment Bill 1988 in response to the 1986 South Australian Government Task Force on Child Sexual Abuse. The present s 34CA has been the subject of varied interpretation by the courts since its commencement and regular judicial calls for legislative reform.
Section 34CA has proved difficult in its application since 2008. The Bill addresses some of the difficulties that have arisen in its application by providing a new regime dedicated to the admission of pre‑recorded investigative interviews of certain vulnerable witnesses, as well as provisions to admit recorded evidence of that class of witness taken during a pre‑trial special hearing. In light of the inclusion of these schemes in the Bill, and the difficulties in application of the section that have been raised by the Court of Criminal Appeal on several occasions, the Government has reconsidered the previous approach to s 34CA of the Act.
The genesis and true purpose of the original s 34CA that emerged from the 1986 Task Force was to admit an out of court statement as an exception to the hearsay rule in relation to child sexual abuse victims when the time, content and circumstances of the statement provide sufficient safeguards of reliability and trustworthiness. The new s 34LA achieves this purpose. Unlike the previous incarnations of s 34CA, it does not require that the maker of the out of court statement be available for cross‑examination.
Section 34LA will apply only where the maker of the statement is not to be called as a witness. It provides that a statement that was made out of court by an alleged victim of a sexual offence who, at the time the statement was made, was a young child of or under the age of 14 years or a person with a disability that adversely affects their capacity to give a coherent account of their experiences or to respond rationally to questions, is admissible to prove the truth of the facts asserted in the statement. The section will operate to make statements admissible regardless of the age of the person or the person’s capacity to give evidence at the time a court is considering the admission of the statement. This is to take into account the scenario where, for example, a young child makes a contemporaneous complaint of sexual interference, and for whatever reason, there is a delay in the matter proceeding to trial. At the time of trial, the young child no longer falls within that definition, however due to the passage of time or for other reasons, he or she may have no memory or ability to recall or repeat the relevant statement.
The effect of the new section is that a complaint, allegation or account of sexual abuse that is given by this class of witness can be presented to a court by the person to whom the statement is made, or a person who was present when it was made. The vulnerable witness is not required to give evidence about the alleged offending or to be available for cross‑examination. The section is a very limited exception to the hearsay rule. If the vulnerable witness is to be called as a witness, s 34LA has no application – however the statement may be admissible as an initial complaint pursuant to s 34M of the Evidence Act 1929. The section does not operate to make admissible a formal investigative interview of a vulnerable witness with a police officer of psychologist. There are other provisions in the Bill to deal with those investigative interviews.
The section is intended to apply in a very rare class of case, where the young child whose cognitive development is not such that they could give evidence, or the person with a disability who similarly does not have capacity to give evidence, says something out of court, that amounts to an allegation of sexual offending. The timing, content and circumstances in which the statement is made bespeaks its reliability. The making of the statement may, for example, be accompanied by sexualised conduct by the vulnerable witness. There may be accompanying evidence that supports the content of the statement – such as eye‑witness, medical or forensic evidence like DNA evidence. In this rare class of case, the timing, content and circumstances in which the statement is made can be adequately tested by examining the person to whom the statement was made or the person who witnessed the statement being made. Issues of competence of the maker of the statement under s 9 of the Evidence Act 1929 do not arise – it being assumed in s 34LA(1)(a) that the oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of the matter.
Section 34LA of the Evidence Act
I reproduce s 34LA:
Admissibility of evidence of out of court statements by certain alleged victims of sexual offences
(1)In proceedings in which a person is charged with a sexual offence, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if—
(a)     oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and
(b)     the person who made the out of court statement is identified to the court’s satisfaction; and
(c)     each of the conditions specified in subsection (2) is satisfied.
(2)     The conditions are as follows:
(a)     the person who made the out of court statement is the alleged victim of the sexual offence;
(b)     the person will not be called as a witness in the proceedings because the judge is satisfied that, at the time the person made the out of court statement, the person was—
(i)      a young child; or
(ii)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;
(c)     the out of court statement was not made by the person to an investigating or other authority as part of a formal interview process conducted in relation to the alleged offence;
(d)     after considering the out of court statement, the circumstances in which it was made and any other relevant factor, the judge is of the opinion that the evidence has sufficient probative value to justify its admission.
(3)Subsection (2)(b) applies regardless of the age of the person or the person's capacity at the time the judge is considering whether to admit the evidence of the out of court statement in the proceedings.
(4)Evidence of an out of court statement admitted under this section may be used to prove the truth of the facts asserted in the statement.
(5)If evidence of an out of court statement is admitted under this section, the judge must warn the jury to treat the evidence of the out of court statement with particular care because it has not been tested by way of examination or cross-examination of the alleged victim
Voir Dire on 6 October 2021
For the purposes of the voir dire, Ms Park for the prosecution tendered the witness statements of MRH, dated 21 February 2020, TLM, dated 20 February 2020, 3 December 2020 and 4 August 2021, a disk of the mobile telephone footage taken by the mother (VD P1) and the complainant’s birth certificate (VD P2).
It is convenient to summarise first the bases upon which the prosecution submits that the three conversations are admissible.
All but two of the pre-conditions to admissibility of the statements are uncontroversial in this case. The defence agrees that the only two pre-conditions which are contentious are to be found in s 34LA(1)(a) and (2)(d).
The court can be satisfied of the identity of the maker of the statement (ss (1)(b)).
The maker of the statement:
·is alleged to be the victim of the charged offence (ss (2)(a));
·is a young child, namely under 14. The complainant was 4 years and 5 months old at the time of making the statements (ss (2)(b)(i)). This pre-condition is dependent only on the age of the complainant, not her capacity as a witness (ss (3));
·did not make the statement to an investigating or other authority (ss (2)(c));
Sub-section 1 provides that so long as the pre-conditions in ss (1) and (2) are met, the complainant will not be giving evidence of the conversations. In this case, the prosecutor indicated that the complainant will not be called to give evidence at all. The corollary of that fact is that the complainant may not be cross-examined.
Ms Park submitted that this case is, to use the words of the Attorney-General in the second reading speech, a "very rare class of case". The complainant is a very young child who could not be expected to give evidence in court. She has, by her words and actions, made a clear allegation of sexual offending by the accused. The timing, content and circumstances in which the statements were made by the complainant bespeak their reliability. The Attorney-General gave an example of statements contemplated by the section being partly by way of spoken words and partly by way of physical demonstration. The prosecution submits that any suggested ambiguity or uncertainty in the complainant's words is explained by her physical demonstration.
While the complainant will not be giving evidence, the parents are expected to give evidence. They may be cross-examined.
The statements of the complainant would ordinarily be admissible as evidence of complaint pursuant to s 34M of the Evidence Act, but where s 34LA applies, s 34M does not. The pre-conditions for admissibility, and the consequences of admissibility of statements under s 34LA are different from those under s 34M. While statements admitted under s 34LA are not the subject of oral evidence, they are admissible as the truth of their contents. There are safeguards to the admissibility of such statements (ss (1) and (2)). There is a safeguard following the admission of the statements. The court is required, pursuant to sub-section 5, to warn the jury to treat the statements with particular care because they have not been tested by examination-in-chief or cross-examination of the complainant. The accused has elected to be tried by judge alone but the trial judge would nevertheless have to heed the warning.
For the defence, Mr Allen QC submitted that there appeared to be no authority directly assisting the interpretation of s 34LA.
He submitted that in respect of the first contentious pre-requisite in sub-section 1(a) there arise two issues:
(i)What is the oral evidence that the complainant must be understood to be giving? and
(ii)Would that evidence be admissible according to the orthodox application of the rules of evidence?
Turning to the first issue, Mr Allen submitted that the oral evidence of the complainant must be understood to be limited to “Pa, licking, shower”.[6]
[6] Statement of mother dated 20/2/20 [13].
While the mother says in paragraphs 14, 15, 16. 20, 21 and 22 that there were further utterances from the complainant, what the mother is really doing is summarising what the complainant has said. In those circumstances the court is unable to identify with sufficient particularity the oral evidence of the complainant herself.
That inability is to be compared with, for example, another exception to the admissibility of out of court statements. That exception is to be found in s 34BA where the video recorded interview with a child may be admitted. However, in that case the words of the witness are identifiable.
Mr Allen submitted that only the oral evidence of the complainant is admissible under s 34LA(1)(a). Her demonstration is not admissible. No evidence from, for example, the parents in summarising what the complainant has said would be admissible. Mr Allen also submitted that the questions asked by the parents would not be admissible.

Mr Allen then moved onto the second of the out of court statements, the one said to have been made by the complainant to both parents in the loungeroom. He submitted that that statement is inadmissible because it contravenes the rule prohibiting the admission of prior consistent statements. If, as appears the case, the complainant's statement to both parents in the loungeroom was no more than a confirmation or repetition of what she had said to the mother in the bathroom, that renders the second conversation inadmissible.
Mr Allen then turned to the second contentious condition found in s 34LA(2)(d), the "probative value" condition. The placitum reads:
After considering the out of court statement, the circumstances in which it was made and any other relevant factor, the judge is of the opinion that the evidence has sufficient probative value to justify its admission.
Mr Allen submitted that this provision is intended to be a safeguard, a provision requiring further caution to be exercised before the admission of material which is not the subject of oral evidence and which cannot be tested by cross-examination.
Mr Allen submitted that the probative weight of the first statement, the mobile phone recorded statement in the bathroom, is reduced by the possibility inherent in the whole of that statement that the complainant is in fact referring to an innocent "cat game" being played by the accused.
Mr Allen submitted that there was a further residual exclusory discretion to be found in s 34KD of the Evidence Act:
34KD—Court's general discretion to exclude evidence
(1)In prescribed proceedings the court may refuse to admit a statement as evidence of a matter stated if—
(a)     the statement was made otherwise than in oral evidence in the proceedings; and
(b)     the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.
(2) Nothing in this section derogates from any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise).
(3)     In this section—
prescribed proceedings means—
(a)     proceedings for a criminal offence; or
(b) proceedings under the Serious and Organised Crime (Control) Act 2008.
In support of that submission, Mr Allen referred to the remarks of Kourakis J in R v Haines.[7] In that case, the court was considering the admissibility of an out of court statement which was of considerable significance in a murder trial. The accused was charged with the murder of her partner. The accused’s mother was an eye witness to the events leading up to the victim’s death. The death occurred in the kitchen of the house occupied by the couple. The gravamen of the impugned witness statement of the accused’s mother was that there was little room for the accused, her daughter, to claim to be acting in self-defence. The mother expressly said her daughter "wasn't protecting herself. Although both of them were holding weapons [the victim] wasn't threatening her with the hammer he was holding."
[7] [2016] SASC 96.
In a later affidavit prepared by the accused's solicitors, the mother gave an account which supported the accused's case based on self-defence. A year later, the mother swore a further affidavit prepared by the accused's solicitors denying critical aspects of the original witness statement taken by the police.
His Honour was satisfied that the mother was too ill to give evidence.
Mr Allen referred to that part of his Honour's judgment which analysed the effect of the exclusory powers contained in s 34KD of the Evidence Act.[8] In particular, Mr Allen drew attention to paragraph 39 where his Honour said that s 34KD preserves the general unfairness discretion (R v Lobban (2001) 80 SASR 550) and the Christie discretion (R v Christie [1914] AC 545).
[8] Ibid [37].
In paragraph 40, his Honour emphasised how fundamental a departure from the common law of evidence is the admissibility of "rank hearsay". Likewise, the forensic disadvantage of a denial of the opportunity to cross-examine. His Honour identified the considerations which are relevant to the exercise of the discretion. I reproduce what his Honour said on those topics:
40.Plainly enough, the rendering of admissible statements which at common law are inadmissible as rank hearsay, is a fundamental departure from the common law of evidence. It is also a fundamental departure from the common law principle that an accused should be able to test by cross-examination the evidence of witnesses against him or her in open court. The abrogation of those important common law protections by s 34KA of the Evidence Act is not unqualified but is subject to the discretions conferred and preserved by s 34KD of the Evidence Act. The forensic unfairness resulting from the loss of those protections in all of the circumstances of the particular case must be evaluated. The considerations relevant to that exercise include:
·      The value of the evidence.
·      The significance of the statement to the prosecution case overall.
·      Whether the statement is supported in material respects by other prosecution evidence.
·      Whether the statement constitutes a major part of the prosecution case.
·      The reliability of the evidence that the statement was made.
·      The reliability of the statement maker having regard to his or her ability to perceive the facts described in the statements and to the circumstances in which his or her statement was taken.
·      The extent of the forensic disadvantage of the accused caused by the loss of the common law procedural right to cross-examine the maker of the statement.
·      Any other forensic unfairness suffered by the accused as a result of the admission of the statement, compared to the position of the accused if the witness had been called to testify.
His Honour concluded that he should exclude the witness statements of the accused's mother taken by the police, unless the defence were to tender the affidavits taken by the accused's solicitors,[9] in which case the prosecution would be permitted to lead the police statements.
[9] Ibid [52]-[53].
Mr Allen applied the Chief Justice's criteria for admissibility to the present case.
He agreed that the complainant's statement, insofar as it can be identified, is valuable to the prosecution case. It has some support in material aspects of other prosecution evidence. Although Mr Allen did not identify that support, I take him to mean that the videoed words of the accused may be construed as implied admissions.
Mr Allen submitted that the reliability of a child of the complainant's tender years must be an important consideration. I take Mr Allen to mean that the utterances of such a young child should be treated with particular caution.
Mr Allen stressed the considerable forensic disadvantage of the denial of the opportunity to cross-examine the complainant. Mr Allen described that disadvantage as the elimination of the primary tool available to the defence in a case of this sort.
Mr Allen referred to two further cases. Both emphasised the importance of cross-examination in the proper presentation of evidence (Wakeley v R (1990) 64 ALJR 321 at 325G and R v Smiles (2018) 131 SASR 553 at [33]).
Mr Allen submitted that in this case the dictates of fairness called for the exclusion of the evidence of the three statements.
Ms Park argued that the defence submission that there is a threshold test requiring the identification of a verbatim oral statement overlooks the purpose for which s 34LA was enacted. Ms Park drew attention to the final paragraph of the Attorney-General's second reading speech where:-
"the timing, content and circumstances in which the statement is made bespeaks its reliability. The making of the statement may, for example, be accompanied by sexualised conduct by the vulnerable witness… In this rare class of case, the timing, content and circumstances in which the statement is made can be adequately tested by examining the person to whom the statement was made or the person who witnessed the statement being made".
Ms Park submitted that the terms of the section make it clear that the statement may take forms other than words. Section 34 LA(2)(b)(ii) provides that the maker of the statement might have a disability which "adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions".
Ms Park submitted that a combination of the complainant's words and actions in the first statement, enlarged upon in the second, should be understood to be a complaint by her that the accused ("Pa", her maternal grandfather) performed cunnilingus upon her on one or more occasions when she was coming out of the bath or shower.
Ms Park submitted that in the last paragraph of his second reading speech, the Attorney-General specifically referred to the admissibility of evidence which accompanies and supports the statement of the vulnerable witness.
That indication is consistent with the words of the section and it means that the utterances of the parents when speaking to their daughter are admissible. The utterances of the parents are not admissible as the truth of their content but are admissible to make sense of the words of the complainant.
Turning to the discretion found in s 34KD, Ms Park did not dispute that the section provides a residual exclusory discretion. However, she submitted that in this case the section has little work to do. It provides a broader discretion, whereas s 34LA addresses the narrower circumstances applicable to vulnerable witnesses. Section 34LA includes its own protective provisions.
Ms Park submitted that the reliability of the complainant's statement is enhanced by the fact that the first statement was recorded on the mother’s telephone. That is by way of contrast with the facts of Haines, where it was clear that the statement taken by the police officer did not faithfully record the words of the witness.
Ms Park did not seek to minimise the importance of cross-examination in the forensic context. She submitted, though, that s 34LA contemplated that forensic disadvantage and provided its own safeguards.
Ms Park submitted that this case is precisely of the kind for which s 34LA was designed. Bearing in mind the legitimate public interest in the disposition of charges for serious offences such as these, and the need to maintain public confidence in the administration of justice, the statements should be admitted.
Consideration
As the second reading speech of the former Attorney-General makes clear, the introduction of s 34LA of the Evidence Act is the latest of a series of amendments to the Act designed to facilitate aspects of the prosecution of alleged sexual offending against children and people with a disability. Although the amendments refer to people with a disability, I will henceforth refer to only children being affected.
Each amendment sought to make it easier for the evidence of children to be admitted in circumstances where the common law would prevent such admission.
I will not traverse the history of the amendments but note the principal changes.
Section 34CA was introduced in 1988 in response to the 1986 South Australian Government Task Force on child sexual abuse. The section had the effect of permitting an out of court statement by a child to be admitted in certain circumstances, and to be admissible as proof of its content. The common law rule against hearsay would otherwise prevent such admission.
In R v J, JA (2009) 105 SASR 563 at [12], Duggan J cited the remarks of Heydon J in Gately v R (2007) 232 CLR 208 at [104] which explained the purpose of a similar, although later, provision of the Queensland Evidence Act. Heydon J said:
“Section 93A is dealing with a narrow field, and with peculiar problems- those concerned with children and intellectually impaired persons. The legislation rests on the assumption that an account given before the trial "can be of more probative value than present testimony, particularly if the present memory is faulty or it is difficult for the witness to articulate it in court". (Reference omitted)
The legislative judgment is that it is more important to have before the trier of fact a clear statement from these types of witnesses, even if it is in an unsworn document, than to preserve the principle of orality in its full integrity.”
Section 34CA was amended in 2008. I do not deal with the reasons for that amendment beyond saying that the evidence which was therefore admissible extended beyond simply a complaint of sexual offending.
I turn to the subsequent judicial discussion of the 2008 amendment. One of the pre-conditions for the admissibility of an out of court statement by a child was that the child be available to be called as a witness (section 34CA(1)(b)(i)).
In R v Byerley (2010) 107 SASR 517, the CCA considered a case stated which related to rulings on the operation of s 34CA. In that case, the alleged victim of a sexual offence was a 3 year old child. The prosecutor did not intend calling the child to give evidence. Doyle CJ, with whom White J agreed, held that in those circumstances a necessary pre-condition for the admissibility of the out of court statement was missing. The witness was not available to give evidence.[10] Kourakis J, as he then was, took a different view.[11] Doyle CJ accepted that the interpretation of the majority might be said to defeat one of the objects of the legislation which was that an out of court statement might be admissible, even though the child would not be giving evidence. His Honour said, "So it cannot be said that Parliament has severed the link between admissibility and the availability of the protected witness."[12]
[10] Doyle CJ at [33] and [37], White J at [64] and [72].
[11] [95].
[12] [34].
In the first legislative attempt to pass s 34LA in substitution for s 34CA, the Hon. J.R. Rau said:[13]
“Sometime after its enactment in 1988, section 34CA fell out of use. This was because it depended on the child being called, or being available to be called as a witness, as a consequence of which it could not operate when the child was incapable of giving sworn or unsworn evidence… thus excluding from its operation the very cases where the section was most needed.”
[13] Hansard, 14 September 2011, p 4944.
The former Attorney-General recited part of the dissenting judgment of Kourakis J in Byerley to illustrate the problem created by the requirement of the witness to be available to give evidence. I reproduce the passage from p 4945 of Hansard:
Justice Kourakis gave a useful description of the problem in his judgment in R v Byerley:
The facts of this case serve as a good illustration of the types of protected statements which Parliament probably intended to be admitted without cross-examination but which are inadmissible on either of the constructions propounded in R v J, JA. The complainant in this case was three years of age when his mother found him fondling his penis. She asked him what he was doing and he replied that 'this is what [the appellant] does to me'. It is inherently improbable that a response like that could be intentionally fabricated or even imagined by a three year old child. The probative value of that spontaneous response, which arises from the circumstances in which the protected statement was made, is very great indeed. Moreover, no cross-examination of the complainant could possibly diminish that weight. If a trial were to take place soon after the alleged offence, a child of just over three is unlikely to satisfy the requirements of section 9 of the Act. Nor would the test proposed by White J in R v J, JA allow for the cross-examination of a child of such tender years. The effect of both a literal construction and the construction given by both the majority and White J in R v J, JA of the cross-examination condition of section 34CA(1) would therefore be to exclude evidence of protected statements. That result would ensue even though the protection statements fell squarely with the purpose of the provision; a result which is completely contrary to the purpose of this section.
This Bill deals with the problem of repealing section 34CA and replacing it with section 34LA. For the reasons set out below, the section is to be relocated in Division 2 of Part 3 of the Evidence Act dealing with miscellaneous rules of evidence in sexual cases.
This brief account of the legislative history of s 34LA demonstrates the purpose of the section was to overcome the requirements of its predecessor that a child be available to give evidence. As radical a departure from the common law as that may be, the legislature made clear its intention in that respect, and it used clear words to achieve that end. In fact, the absence of the child from the witness box is a precondition to the admissibility of any statement (s 34LA(2)(b)).
In addition, the legislature illustrated the reasoning behind the change by citing part of the dissenting judgment of Kourakis J in Byerley.
Against that background I now consider the submissions of counsel in the present matter.
I deal compendiously with the first two objections raised by Mr Allen QC to the admissibility of the out of court statements, namely that the statement must pass a threshold test in the sense that only the words uttered by the complainant amount to ‘oral evidence’ the purposes of ss 1(a). No demonstration or actions by the complainant will meet the test, he submitted. No words of the parents by way of questions or summary of the complainants words will meet the test. The only oral evidence which meets the test are the complainants words ‘pa, licking, shower,’ and the other direct speech of the complainant referred to in the mother’s affidavit in paragraphs 14, 15, 16, 20, 21 and 22 of her first affidavit.
It is true that when witnesses in court demonstrate something they are asked to put their actions into words or counsel agree what has been demonstrated. In those ways the demonstration is recorded in the transcript. However, in my view the purpose of the oral explanation in those circumstances is to put beyond doubt what was demonstrated and to record it for later reference. I have never seen it suggested that the demonstration is inadmissible. It is a communication by the witness in the witness box which the fact finder can see.
Plainly the Attorney-General contemplated that the witnesses statements may be partly by way of demonstration. Ms Park pointed out that the Attorney-General made reference to conduct. He said ‘the making of the statement may, for example, be accompanied by sexualised conduct by the vulnerable witness’. The Attorney-General may have had in mind the facts in Byerley to which he made reference in 2011[14] when commending the dissenting remarks of Kourakis J. In that case the mother of the three-year-old boy noticed him fondling his penis. She asked him what he was doing. He replied that is what the accused does to him.
[14] Hansard, 14 September 2011, page 4945.
Ms Park also drew attention to the terms of ss 2(b)(ii). That passage refers to an out of court statement of a person with a disability that adversely effects the persons capacity to give a coherent account of their experience, or to respond rationally to questions. The implication is that something other than a coherent (verbal) account and something other than a rational (verbal) response will be admissible.
I reject the submission that a threshold test of admissibility is that the statement must be solely in verbal form. In my view, the words and actions attributed to the complainant by her parents are capable of being understood to mean that the complainant was making a statement to the effect that her maternal grandfather performed cunnilingus upon her at bath time. It would of course be entirely for the fact finder to determine whether to accept the truth of that evidence.

I also find that it is fallacious to assert that the questions of the parents are inadmissible. An examination of the passages of the parents statements shows that the verbal answers given by the complainant only make sense when the question is admitted. It is true but trite to observe that questions are not evidence, but the evidence of the answers can only be understood if the questions are heard.
It is not entirely clear what the defence means when submitting when submitting that the parents summaries of what the complainant said were inadmissible. If objection is taken, for example, to the passage in paragraph 18 of the mother’s statement of 20 February 2020 where she says that when the complainant was brought into the loungeroom she ‘said everything again about pa..’ then that is no more than a shortened way of repeating exactly what the complainant said. I cannot find any other passages in the parents statements which could be described as summaries.
The third defence objection is that the second statement, the one made in the loungeroom in the presence of both parents, falls foul of the rule against receipt of evidence of prior consistent statements. In my view that submission is untenable. It is true that in paragraphs 18 and 19 of her witness statement the mother says that the complainant repeated in words and actions what she had said and done in the bathroom but the complainant adds to that account in what is reported in paragraphs 20, 21, and 22 of the mother’s affidavit. Those paragraphs refer to new pieces of information. In particular, the grandfather is identified as the maternal grandfather and references made to the use of the green towel. The repetition to both the parents of what the complainant had told the mother in the bathroom provides the context for the newer information.
The fourth defence objection relates to the third conversation, the one the complainant had with her father alone. Mr Allen submitted that the father is asking his daughter what her grandfather would say if he told him what she had said. As such it offends the rule against asking the witness to comment on another person’s state of mind.
In my view that submission must be rejected. In reality the father’s question of his daughter was not directed to finding out what was the grandfathers state of mind but, instead, it was testing the truthfulness of the complainant. It was designed to see whether she would retract her story or would temporise about it in the face of what she was saying being put to the grandfather. Further, that conversation explains how it comes about that the accused confronts the parents with a misunderstood version of that conversation on the Wednesday.
There might be a question about the relevance of the conversation on the Wednesday between the accused and the parents. No objection was taken to the admissibility of that conversation but that was because that conversation becomes meaningless unless the third conversation is admitted.
On reflection it would not be sufficient justification for admitting the third conversation that it does no more than explain the conversation on the Wednesday. I put that proposition to Mr Allen in court. He described that as a ‘bootstraps’ way of admitting evidence. That may be a reasonable argument if in fact the Wednesday conversation is inadmissible because it has no relevance. I make no ruling on the admissibility of the Wednesday conversation between the accused and the parents because I heard no argument on it.
On the other hand, I think that there is another reason for the third conversation being admissible. It may tend to bolster the credit of the complainant. Faced with the possibility of her story being told to the accused she nevertheless said he would confirm its truth if he was asked.
The fifth objection to the admissibility of the three statements is that they have little, or at least insufficient, probative weight to justify their admission. In particular there is the possibility that what the complainant was demonstrating was an innocent ‘cat game’ that the accused may have been playing with her.
In my view there is significant probative weight in each of the statements. While it would of course be for the trial Judge to determine the effect of what the complainant was saying and demonstrating, the complainant pointing to the area of her genitals in the first and second statements tells against the innocent ‘cat game’ hypothesis. The second conversation as I have said adds some relevant detail to the first.
The third conversation is capable of bolstering the complainants credit for the reason I have just mentioned, but the third conversation is an essential link to the implied admissions made by the accused which were recorded on the Wednesday.
I find that the objection to the admissibility of all three of the out of court statements based upon ss (1)(a) and (2)(d) are insufficient to exclude the statements.
In satisfaction of ss (1)(a) I find that the oral evidence may include the physical demonstrations by the complainant. The questions of the parents are admissible simply to make sense of the complainants answers. The third statement is admissible as bolstering the complainants credit and as being a necessary link to the implied admissions of the accused. The oral evidence the complainant, thus understood, is identifiable and probative.
In satisfaction of ss (2)(d) I find that the spontaneity of the first two conversations and the fact that part of the first conversation was recorded, are sufficiently probative to justify their submission. To adopt the words of the former Attorney-General in the second reading speech ‘the circumstances of these statements bespeak their reliability.’ For the reasons that I have already mentioned I find that the third conversation is also of sufficient probative value to justify its admission.
I must nevertheless consider whether evidence which is prima facie admissible should be excluded in the exercise of the fairness or the Christie discretions or the discretion arising from s 34KD of the Evidence Act. There is no doubt that the removal of the opportunity to cross examine the complainant is a significant forensic disadvantage for the accused. The safeguard provided in s 34LA(5), namely the warning required by that very removal, does not entirely remove the forensic disadvantage, although in a Judge alone trial the safeguard may give added reassurance.
In my judgment the unusual circumstances of this case do not call for the exercise of the exclusory discretions. The utterances of the complainant were, on the account of the mother, entirely spontaneous. The parents will be available for cross examination. Some of the utterances by the complainant, and some of her demonstrations, were recorded by the mother on her telephone. The implied admission by the accused is important evidence supporting the prosecution case. The circumstances of the third statement, and the subsequent conversation between the complainant and her grandfather, where she effectively confronts him with what she understood, wrongly, to be his denial of what she said, are of significant probative weight.
I admit the three out of court statements into evidence.