R v Pt
[2013] ACTSC 20
•8 May 2013
R v PT
[2013] ACTSC 20 (8 May 2013)
CRIMINAL LAW – EVIDENCE – Judicial Discretion to admit or exclude Evidence – audiovisual recording of police interview with complainant admissible as evidence in trial – audiovisual recording not to be edited or changed without court order – new indictment filed alleging different charge – prosecution application to edit audiovisual recording of police interview to reflect new indictment and complainant’s recent indication of evidence she would give – purpose of editing relevant to exercise of court’s discretion – aim of legislation was to protect complainants and to get earliest evidence of complaints – need to avoid unfairness – no application by defence to edit out reference to allegation of more serious offence – effect of editing on defence’s capacity to make forensic decisions – application refused.
Crimes Act 1900 (ACT) ss 61(1), 62(1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 40E(1), 40E(3)(b), 40F, 40F(1)(a), 40F(2), 40P, 40Q(3), 40S; Divisions 4.2A, 4.2B
Sexual and Violent Offences Legislation Amendment Act 2008 (ACT)
Revised Explanatory Statement for the Sexual and Violent Offences Legislation Amendment Bill 2008 (ACT)
No. SCC 39 of 2012
Judge: Penfold J
Supreme Court of the ACT
Date: 8 May 2013
IN THE SUPREME COURT OF THE )
) No. SCC 39 of 2012
AUSTRALIAN CAPITAL TERRITORY )
R
v
PT
ORDER
Judge: Penfold J
Date: 8 February 2013
Place: Canberra
THE COURT ORDERS THAT:
The Crown’s application made on 7 February 2013 to edit the police interview dated 21 May 2010 to remove questions 163-167 and question 52 is refused.
IN THE SUPREME COURT OF THE )
) No. SCC 39 of 2012
AUSTRALIAN CAPITAL TERRITORY )
R
v
PT
REASONS FOR DECISION
Judge: Penfold J
Date: 8 May 2013
Place: Canberra
Introduction
PT was charged with one count of incest, involving an act of sexual intercourse with a lineal descendant, his daughter, under the age of 10 years (Crimes Act 1900 (ACT), s 62(1)).
Arrangements for taking complainant’s evidence
Because the complainant was a child complainant in a sexual offence proceeding (Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act), s 40P), her evidence was to be taken in a pre-trial hearing.
When the complainant first made her complaint, she took part in two recorded interviews with police, and the prosecution proposed to lead the record of that interview as the complainant’s evidence in chief in the trial in accordance with Div 4.2A of the Miscellaneous Provisions Act. The process was that the record of the police interview would be admitted at the pre-trial hearing as the complainant’s evidence in chief (s 40Q(3) of that Act), and she could then be further examined by the prosecutor and cross-examined by defence counsel. The record of that pre-trial hearing, including the recorded police interviews, would be admitted as the complainant’s evidence at the trial (s 40S of the Miscellaneous Provisions Act).
New indictment and application to edit audiovisual recording
After proofing the complainant shortly before the scheduled pre-trial hearing, the prosecutor sought leave to withdraw the indictment and file a new one alleging instead an act of indecency on the complainant (Crimes Act, s 61(1). Leave was granted.
The prosecutor then sought an order for the editing of the record of one of the police interviews to remove certain questions and answers. He explained that the complainant’s evidence as foreshadowed during the proofing no longer indicated an act of sexual intercourse on the occasion to which the original indictment had related. Rather, it seemed that her evidence would only be of an act of indecency, and this explained the new indictment.
The prosecutor explained that if, in a case not involving pre-recorded evidence, a complainant had not come up to proof in relation to a charge, he would not seek to lead evidence in support of that charge when the complainant gave evidence in chief. Accordingly, he considered that in this case the Crown should not lead evidence of an allegation that it no longer sought to establish. Hence his application for certain parts of the recorded police interview to be edited out before the interview was played at the pre-trial hearing.
Admissibility of audiovisual recordings of police interviews
Section 40E(1) of the Miscellaneous Provisions Act defines an audiovisual recording as:
an audiovisual recording that is of a witness answering questions of a prescribed person in relation to the investigation of a sexual or violent offence.
Section 40F(1)(a) of that Act permits such a recording to be played and to be admitted as the witness’s evidence in chief at “the hearing of a proceeding for the ... offence to which it relates”.
Under s 40E(3)(b) of the Miscellaneous Provisions Act, the audiovisual recording “must not be edited or changed” without a court order. An example in that provision refers to editing the recording to omit inadmissible material. In this particular case, I had already made orders for the editing out of certain inadmissible material.
As well, a court may refuse to admit all or any part of an audiovisual recording (Miscellaneous Provisions Act, s 40F(2)).
Part 4.2A of the Miscellaneous Provisions Act was inserted by the Sexual and Violent Offences Legislation Amendment Act 2008 (ACT). The Revised Explanatory Statement for the Sexual and Violent Offences Legislation Amendment Bill 2008 (ACT), which also contained provisions permitting police interviews to be used in committal proceedings, and provisions relating to pre-trial hearings at which evidence is taken, contained the following comments about the purpose of the new provisions (at pp 2-5):
These amendments are intended to achieve the dual objectives of treating complainants in sexual and violent offence proceedings and other vulnerable witnesses with respect and dignity during the prosecution process, and ensuring a fair trial for an accused.
...
The amendments which provide special measures for the giving of evidence in court proceedings, do not affect the right to a presumption of innocence for an accused, under section 22(1) of the Human Rights Act 2004 as they are solely designed to extract the ‘best’ evidence possible from witnesses who may otherwise suffer a disadvantage, if required to give evidence without such measures. The interests of justice are served by ‘best’ evidence which is accurate, reliable, coherent and complete.
...
The Bill contains amendments specifically designed to provide special measures for the giving of evidence by children and people who are intellectually impaired. The rationale for introducing these amendments is to obtain the best evidence available from these witnesses. The amendments recognise that the majority of children and people who are intellectually impaired suffer a deficit in their ability to communicate and find it harder to adapt to new environments and situations. The amendments will make it easier for these witnesses to give their evidence and provide greater protection from the stresses of the court process, as well as providing a better balance of fairness between the accused and these witnesses.
...
Amendments to the Magistrates Court Act 1930 permit the admission of a transcript of an audio or visual recording of an interview between police and children or intellectually impaired witnesses, as these witnesses’ evidence-in-chief in a committal proceeding. The amendments will reduce the number of times children and intellectually impaired witnesses are required to give evidence throughout the criminal justice system, which will help mitigate the problems that result from inconsistencies and omissions which are unavoidable when a child is forced to recount their story repeatedly.
...
Admission of pre-recorded police interview
Amendments to the Evidence (Miscellaneous Provisions) Act 1991 will permit the admission of a pre-recorded audiovisual recording of an interview between police and witnesses as the witness’s evidence-in-chief at trial. The amendments would apply to children and adults with an intellectual impairment, who are complainants in sexual, serious or less serious violent offence proceedings.
...
Pre-recording of evidence at a pre-trial hearing
Amendments to the Evidence (Miscellaneous Provisions) Act 1991 will ensure that the evidence of children and adults with an intellectual impairment, who are witnesses in sexual assault proceedings, is taken as close as possible after the commission of an offence.
Consideration
The Act does not give any guidance, beyond the reference to excluding inadmissible material, to the circumstances in which the court may or should permit editing of the recording or refuse to admit any part of a recording.
Various issues arose in relation to whether I should order the further omissions from the audiovisual recording sought by the prosecutor.
Effect of editing the audiovisual recording
The exact effect of omitting the relevant parts of the audiovisual recording was problematic.
In the audiovisual recording, the complainant was asked when was the last time her father had touched her with his “pecker” (her preferred term for penis) and she had mentioned a place where she had been living with him. Two questions later, she confirmed her claim and said that “then”, there had been penetration. This last question and answer were sought to be edited out. There were other questions and answers later in the interview specifically relevant to the claim of penetration, which were also proposed for omission.
The relationship between the material sought to be omitted and the preceding material that would remain is ambiguous.
It may be that all the omission would do is to draw attention to a preceding act of indecency that the complainant had in fact had in mind when she answered the earlier questions but that was not then pursued by her questioners. However, the prosecution’s initial view of the complainant’s answers seems to have been that her answer to the question about when her father had last touched her with his pecker was simply an introduction to her allegation of penetration, rather than a separate claim of an act of indecency preceding the penetration. The distinction is between “then” meaning “on the occasion identified” (by the location she had mentioned), and “then” meaning “next”.
On the basis of the prosecution’s initial view, if the specific claim of penetration was removed from the audiovisual recording, then that recording contained no allegation of the offence charged in the new indictment – that evidence would have to be given by the complainant at the pre-trial hearing. While the audiovisual recording, as edited, might still fit the definition used in s 40E(1) of the Miscellaneous Provisions Act of a record of “a witness answering questions ... in relation to the investigation of a sexual ... offence”, it is not clear to me that it would be admissible under s 40F of that Act in the trial on the new indictment, because that trial would not be a trial of “the sexual ... offence to which [the audiovisual recording] relates”. Whether, if the material in the audiovisual recording was in fact relevant to the new charge, for instance as relationship or context evidence, it could be admitted by playing the audiovisual recording in court, is a separate question and one which I did not need to consider.
If, however, the new charge was now particularised as relating to the touching that was mentioned, without any details, immediately before the claim of penetration, then it could be argued that the audiovisual recording remained admissible under s 40F because the trial on the new charge related to one of the sexual offences being investigated when the complainant took part in the conversation with police that is recorded in the audiovisual recording. There might then have been grounds for the defence to object to the admissibility of parts of the audiovisual recording such as the claim of penetration, and it might have been appropriate to make further orders for the editing of the recording to omit those parts as inadmissible.
However, the defence explicitly did not seek any further editing, and I assume there were considered forensic reasons for that.
Purpose of prosecutor’s application
Instead, the application before me, made by the prosecutor, is to have the audiovisual recording edited so that it is consistent with the evidence that the prosecution will otherwise seek to lead from the complainant, having regard to what has emerged in recent proofing of her.
I accept that the prosecutor sought the order in this case out of a wish to act with propriety, and that the prosecution finds itself in a very difficult position.
Declining to tender the audiovisual recording and running the case entirely on evidence given by the complainant during the hearing would detract from the protections intended to be provided to child complainants by Divisions 4.2A and 4.2B of the Miscellaneous Provisions Act.
Tendering the audiovisual recording in its current form would involve the prosecution putting before the jury material whose accuracy it now doubts, and material that is at face value prejudicial to the accused. Of course, the prosecutor would normally, and will no doubt in this case, follow the playing of the audiovisual recording by asking the complainant whether, having watched the recording again, there is anything she wishes to correct. This, it seems to me, is the mechanism by which the prosecution can maintain its honour in this particular situation.
Nevertheless, the option of editing the audiovisual recording to exclude that prejudicial material that the prosecution does not seek to rely on is at first glance attractive. The legislation contemplates editing of audiovisual recordings, and does not explicitly impose any limits on the court’s power to order such editing. Editing the audiovisual recording would ensure that the prosecutor does not tender evidence he has reason to doubt.
Purpose of editing is relevant
An audiovisual recording is by virtue of s 40F of the Miscellaneous Provisions Act admissible as the complainant’s evidence. It is not just a record of the evidence that a complainant has indicated he or she will give. The editing of the audiovisual recording that may be explicitly authorised is for the purpose of removing inadmissible evidence. It seems to me that the extent of the power to authorise editing in other circumstances also depends on the purpose of the editing proposed.
Where editing may cause unfairness
There are several ways of characterising the purpose of the editing that I am asked to authorise.
In general terms, it could be described as editing to bring the audiovisual recording into line with what appear to be the complainant’s current memories or current intentions as to the evidence she will give. More specifically, the editing is intended to remove evidence relating to a charge that has been abandoned because the evidence may not be reliable, so as to give, or perhaps reveal, a new meaning or significance for other evidence that has not previously been relied on, but is now relied on to found a new charge.
The significant feature in both formulations is that evidence that has not been challenged as inadmissible is sought to be altered in a way that may improve its value as evidence of the specific matters now sought to be established by the prosecutor. Ensuring that only admissible evidence is in fact admitted is one thing – the editing (however well-intentioned) of evidence so that it better fits the prosecution’s case theory or the other evidence likely to be given seems to me to be quite a different matter. In particular, editing for such a purpose is not obviously required by the protective aims of Divisions 4.2A and 4.2B of the Miscellaneous Provisions Act; I cannot see any basis for believing that the availability of such editing was intended by the legislature which permitted audiovisual recordings of police interviews to be made and admitted in trials, but only in the context of imposing strict controls to ensure the integrity of such recordings.
Of course, it is unlikely that courts would be easily persuaded to permit such editing in cases where it could result in an unfair trial, but that is not the point. The point is that the potential for serious unfairness in permitting editing of audiovisual recordings so that they accord with subsequent developments is enough to persuade me that the legislature did not intend that the court’s power to permit amendment of an audiovisual recording should be exercised in such a situation.
Effect on intention of legislation
It is inherent in the scheme for the admission of recorded police interviews that such interviews will not always take the same course as would have been taken if the complainant’s “evidence” was first given in court. Indeed, it is apparent from the explanatory material quoted at [11] above that, as well as reducing the number of times the complainant must tell his or her story, an aim of the provisions of Part 4.2A was to capture the complainant’s evidence when it is freshest in the complainant’s mind. Editing that evidence to bring it into line with the complainant’s later recollections could in that respect be seen to subvert the intention of the legislative provisions.
Significance of editing for defence
One of the complexities in this matter is that there are two different kinds of unfairness that may arise in this situation. One, of course, is the potential unfairness of putting before a jury prejudicial material that a witness may no longer wish to assert – this, I understand, is the unfairness sought to be avoided by the prosecution in seeking an order to edit the audiovisual recording. On the other hand, there is also potential unfairness in depriving the defence of an opportunity to use the inconsistencies in the witness’s evidence from time to time to challenge her credibility. Those two risks, however, are in fact both risks for defence counsel to consider and weigh. The order sought by the prosecution could be seen as a judicial interference in forensic decision-making by the defence.
Conclusions
The legislative purpose, and the effect on defence decision-making, also seem to me to support the conclusion that Divisions 4.2A and 4.2B of the Miscellaneous Provisions Act are not intended to permit a court to order the editing of an audiovisual recording specifically for the purpose (however described) of bringing the audiovisual recording into line with subsequent developments or other evidence likely to be given. This would not of course prevent an order for the purpose of excluding inadmissible material, or for some other purpose that is found to be appropriate, simply because such editing would in a particular case have the effect of bringing the audiovisual recording into line with subsequent developments or other evidence.
For all these reasons, I concluded that the legislation did not permit me to order the editing of the audiovisual recording in the manner sought by the prosecutor.
Accordingly, I refused the prosecutor’s application for further editing of the audiovisual recording.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Sameena Ahmad
Date: 8 May 2013
Counsel for the Crown: Mr A Williamson
Solicitor for the Crown: Director of Public Prosecutions
Counsel for the defendant: Mr K Archer
Solicitor for the defendant: Legal Aid ACT
Date of hearing: 7, 8 February 2013
Date of order: 8 February 2013
Date of reasons: 8 May 2013
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