R v SH; R v Michael Vaughan; R v Kalonga Chifuntwe (No.2)
[2010] ACTSC 158
•16 December 2010
R v SH; R v MICHAEL VAUGHAN; R v KALONGA CHIFUNTWE (No.2)
[2010] ACTSC 158 (16 December 2010)
EVIDENCE – pre-trial hearing – evidence of complainant as audiovisual recording of police interview – whether must be played at pre-trial hearing – may be admitted as an exhibit
Evidence Act 1995 (Cth), ss 48, 190
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2A, Div 4.2B, ss 39,40E, 40F, 40J, 40L, 40Q, 40R, 40S
Sexual and Violent Offences Legislation Amendment Act 2008 (ACT)
R v Zuber (2010) 242 FLR 416
Kozul v The Queen (1981) 147 CLR 221
R v DM [2010] ACTSC 137
R v SH, Vaughan and Chifuntwe [2010] ACTSC 157
Heydon, JD. Cross on Evidence (Sydney, Butterworths: 1996)
REASONS FOR JUDGMENT
No. SCC 2, 3 & 4 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 16 December 2010
IN THE SUPREME COURT OF THE )
) No. SCC 2, 3 and 4 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
V
SH, MICHAEL VAUGHAN and
KALONGA CHIFUNTWE
ORDER
Judge: Refshauge J
Date: 23 November 2010
Place: Canberra
THE COURT ORDERS THAT:
The audiovisual recordings of the interviews between the complainant and Detective Senior Constable Michael Harris on 27 July 2009, 30 July 2009, 1 August 2009, 28 August 2009 and 21 October 2009 be admitted into evidence as exhibits in the pre-trial hearing.
On 23 November 2010, I admitted into evidence of a pre-trial hearing the audiovisual recording of five interviews between the complainant and certain police officers and the transcripts of those recordings. These are my reasons for that order.
Background
The pre-trial hearing is a procedure established by the Sexual and Violent Offences Legislation Amendment Act 2008 (ACT) which amended the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (Miscellaneous Provisions Act). It is used for proceedings involving certain defined offences of a sexual nature or involving violence. I briefly traced the background to that legislation in R v Zuber (2010) 242 FLR 416, especially the admission of audio-visual recordings of the type admitted in evidence here.
In summary, the evidence-in-chief of certain persons may be adduced by admitting into evidence a recording of the interview of that person with specially qualified police officers.
In the case of the sexual offences, provision is also made for the complainant to give evidence before trial and for that evidence to be recorded audio visually and then replayed at the trial. The evidence of the complainant includes evidence given in examination-in-chief, cross-examination and, if any, re-examination.
In this case, the complainant was interviewed by police on five occasions over a total of more than six hours. The interviews were recorded and the prosecution proposed to avail itself of these procedures to have the audiovisual recordings admitted into evidence.
The Issue
Due to the length of the interviews, it was submitted by counsel for the three accused that the recordings should be admitted into evidence as an exhibit, which would be played at the trial, but which it would not be necessary to be played at the pre-trial hearing. The prosecution submitted that, to comply with the legislation, it was necessary to play the recordings in full at the pre-trial hearing.
The Legislation
In this judgement, reference to statutory provisions are to provisions of the Miscellaneous Provisions Act unless otherwise specified. The relevant provisions of the Miscellaneous Provisions Act are as follows:
Division 4.2A – Sexual and violent offence proceedings – audiovisual recording of police interview admissible as evidence
...
40E Meaning of audiovisual recording – div 4.2A
(1) For this division, an audiovisual recording is 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.
...
40F Audiovisual recorded may be admitted as evidence
(1) An audiovisual recording may –
(a) be played at the hearing of a proceeding for the sexual or violent offence to which it relates; and
(b) if the recording is played at the hearing – be admitted as the witness’s evidence in chief in the proceeding as if the witness gave the evidence at the hearing in person
(2)However, the court may refuse to admit all or any part of the audiovisual recording.
...
40LTranscript of audiovisual recording – access to court
If an audiovisual recording is admitted in evidence in a sexual or violent offence proceeding, the court may order that a transcript of the recording be made available to the court.
Division 4.2.B – Sexual offence proceedings – giving evidence at pre-trial hearing
...
40Q Witness to give evidence at pre-trial hearing
(1)A witness may give evidence at a pre-trial hearing.
(2)The evidence must be given by audiovisual link from a place that –
(a) is not the courtroom in which the pre-trial hearing is held; but
(b) is linked to the courtroom by an audiovisual link.
(3)However, the witness’s evidence in chief given at a pre-trial hearing may include an audiovisual recording under division 4.2A (Sexual and violent offence proceedings – audiovisual recording of police interview admissible as evidence).
(4)If an audiovisual recording under division 4.2A is played at the pre-trial hearing, the witness must not be visible to anyone in the courtroom by audiovisual link when the audiovisual recording is played.
(5)While the witness is at the place to give evidence, the place is taken for all purposes (other than subsection (4)) to be part of the courtroom in which the pre-trial hearing is held.
...
40SEvidence of witness at pre-trial hearing to be evidence at hearing
(1)The evidence of a witness (including cross-examination and re-examination) given under this division must be recorded as an audiovisual recording.
(2)The evidence in chief of the witness may include an audiovisual recording under section 40E (Meaning of audiovisual recording – div 4.2A).
(3)The audiovisual recording of the witness’s evidence must–
(a) be played at the hearing of the sexual offence proceeding for which the pre-trial hearing was held; and
(b) be admitted in evidence as the witness’s evidence at the hearing as if the witness gave the evidence at the hearing in person.
It is to be noted that in Div 4.2A “audiovisual recording” is a defined term for the purpose of that Division, but that in Div 4.2B, it is not a defined term and, as s 40S makes clear, has a different meaning, unless the meaning as in Div 4.2A is expressly referred to and used, as in s 40S(2).
Thus, s 40S(1) refers to the evidence of the witness being recorded as an audiovisual recording and s 40S(2) notes that for this purpose, the evidence may include an audiovisual recording under Div 4.2A. The term in the two sections cannot have the same meaning for the given evidence at the pre-trial hearing would not fulfil the criteria set out in s 40E of Div 4.2A for an audiovisual recording as there defined, namely, “answering questions of a prescribed person in relation to the investigation of a sexual or violent offence”.
In Div 4.2B, therefore, the audiovisual recording (unless specified to be an audiovisual recording under s 40E, as in ss 40Q(3) and (4) and 40S(2)) will merely be a recording by audiovisual means.
The Contentions
The prosecution contended that s 40S(1) of the Miscellaneous Provisions Act required that the audiovisual recording of the complainant’s interview with police was required to be played and re-recorded onto the audiovisual recording of the pre-trial hearing at that hearing.
The submissions of the accused accepted that that recording could be played at the pre-trial hearing. So much is clear from s 40Q(4). Clearly, too, if then admitted, it will have to be played at the trial.
The submissions of the accused, however, was that if the accused consented and did not require that recording to be played at the pre-trial hearing, the Court had a discretion (as evidenced by the word “if” in s 40Q(4)) as to whether to have it played or not. Whether played or not, that recording could be tendered as an evidentiary exhibit.
Consideration
The legislation is perhaps not express on this point. It does seem to me, however, that it is readily susceptible to the construction for which the accused contend.
The tender of an audiovisual recording of the interviews between the complainant and the police admits the contents of the recording into evidence.
As was said in Heydon, J D. Cross on Evidence (Sydney, Butterworths: 1996) Looseleaf edition, (at 1037 [1075])):
Evidence consists of the testimony, hearsay, documents, things and facts which a court will accept as evidence of the facts in issue in a given case.
As to documents, the author further commented (at 1121 [1265]):
A document may be put in evidence either as a chattel – a substance such as a paper or part of it bearing an inscription – or else as a statement – the inscription on the substance. When treated as a chattel, there is no doubt that it constitutes real evidence, as when a deed alleged to have been stolen is produced to the court in order to show that it bears the fingerprints of the accused. When treated as a statement, a document constitutes testimonial evidence in the vast majority of cases; but it may be used as circumstantial evidence.
As Gibbs CJ, with whom Mason J (as his Honour then was) agreed, said in Kozul v The Queen (1981) 147 CLR 221 (at 226):
[An exhibit is] just as much part of the evidence as the oral testimony of the witnesses.
It is clear that s 48 of the Evidence Act 1995 (Cth) makes the tender of the audiovisual recording with the transcripts a permitted method of adducing the evidence of the contents of the documents, so long as the transcripts are otherwise admissible. The Dictionary of that Act defines “document” to include such recordings.
Here, of course, the contents are admissible under s 40S(3).
It was contended that this approach was inconsistent with s 40S(1) which requires the evidence of the complainant at a pre-trial hearing to “be recorded as an audiovisual recording”. I reject that argument. In the first place, the recording of the interview between the complainant and the police is an audiovisual recording, so the aims and strict terms of the sub-section have been met. It is not included in the same recording as the oral testimony of the complainant but this cannot be relevant, for, in a number of cases, there will be a number of recordings or discs and not merely one; which disc or other recording device the interview appears on cannot be relevant.
Secondly, it is clear that often documents and objects which are tendered during the pre-trial hearing are tendered as exhibits in the usual way and preserved by the court for production at the trial. The tender of the documents or objects admitting them as evidence is, of course, recorded, but they are not then somehow recorded in another way. This, in my view, is compliant with the provisions.
It might be suggested that s 40F requires the audiovisual recording of the interview between the complainant and the police to be played as a condition of its admissibility, for it requires the recording to be played and, when played makes it admissible.
This is an odd provision, for the playing of the recording amounts to the admission of the statements and pictures in the recording. It does not really make sense to suggest that it could be played before it is admissible.
I have suggested in R v DM [2010] ACTSC 137 (at [170] to [180]) that, if tendered, the recording then itself becomes an exhibit. This has an important consequence, of course, that the jury may then take the recordings with it when it retires to consider its verdict.
This would make sense of s 40F(1)(b) (and similarly s 40S(3)(b)). The playing would have the content of the recording seen and heard by the jury, or judge if a trial by judge alone. Then the recording itself would be admissible as an exhibit, with the aforementioned consequences.
I also note that in Division 4.2B, there is a distinct use of the terms “pre-trial hearing” (s 40Q) on the one hand and “hearing of [a] proceeding” (ss 40S(3), 40J) on the other. Thus, the pre-trial hearing is not the hearing of the proceeding; that is the trial. The pre-trial hearing supplies a method of obtaining the evidence of certain witnesses in a particular format which then is adduced in that format for the ultimate trial, which is the “hearing of [a] proceeding” for the purposes of both ss 40F(1) and 40S(3).
As further confirmation of this, the court is required to limit access to the pre-trial hearing under s 40R. See R v SH, Vaughan, Chifuntwe [2010] ACTSC 157 . No such mandatory limitation is imposed on the trial though the Court has power to limit those who may be present under s 39.
Finally, although this was not utilised on this occasion, s 190 of the Evidence Act 1995 (Cth) would permit the accused to adopt this course by waiving the rules of evidence so far as the recording was concerned. There are, of course, some preconditions to the Court acting on such consent.
I have also read the Explanatory Statement and Revised Explanatory Statement for the Bill that became the Sexual and Violent Offences Legislation Amendment Act 2008 (ACT). There is nothing in those documents which is inconsistent with the view I have expressed.
Indeed, to some extent, they are actually consistent, for the Revised Explanatory Statement states in relation to the use of the audiovisual recording of the interview between a complainant and the police:
These amendments do not involve the derogation of any human rights. A copy of the transcript of the recording will be provided to the accused, and the accused will be entitled to listen to and view the recording, in advance of the trial. This will provide the accused with sufficient time to prepare itself for the cross-examination. The accused person’s right to cross-examine the witness is not affected by proposed division 4.2A, and will occur in the normal manner following the admission of the recording. The recording provides a reasonable substitute for the live testimony of the witness as it continues to allow the accused, the judge and the jury to observe the visual and oral characteristics of the witness, such as their demeanour, voice and language. The court is also provided with a broad discretion to admit of reject the recording as the evidence-in-chief of the witness.
To have the Court sit passively through many hours of the audiovisual recording of the interview of a complainant with the police when the accused do not need that for a proper forensic purpose seems at least unnecessary when the parties have seen the recording beforehand, have a transcript, and will, of course, see it again when it is played to the jury (or, if an election is made, to the judge alone). Given that under s 40R(4), the judge who presides over the pre-trial hearing may not be the judge of the trial, there can be no requirement for the judge to have to hear the recording.
It is true that there may be challenges to the cross-examination on the basis that it misstates or unfairly states the evidence of the complainant as given in the interview. While there would be an advantage to a judge in deciding such an objection to have heard the evidence, there is, nevertheless, a transcript to which reference may be made for this purpose: see s 40L.
If the objection is to a question that relates to the demeanour of the complainant that can only be resolved by looking at the relevant part of the recording, then that may have to be done. Of course, counsel for an accused will often know whether such a question is to be asked in cross-examination and this will properly affect their decision as to whether to support the playing of the recording at the pre-trial hearing or not.
Conclusion
I was satisfied that the audiovisual recordings of the interviews between the complainant and the police and the transcript of the recordings could be tendered without needing to be played at the pre-trial hearing and I so ordered. These are my reasons for doing so.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 16 December 2010
Counsel for the Crown: Ms K Weston-Scheuber
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused, SH: Mr FJ Purnell SC
Solicitor for the accused, SH: Kamy Saeedi Lawyers
Counsel for accused, Michael Vaughan: Mr J Pappas
Solicitor for the accused, Michael Vaughan: Ben Aulich & Associates
Counsel for the accused, Kalonga Chifuntwe: Dr B Boss
Solicitor for the accused, Kalonga Chifuntwe: ACT Legal Aid Office
Date of hearing: 23 November 2010
Date of judgment: 16 December 2010
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