R v Sparks - [2017] SASCFC 171

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SPARKS
[2017] SASCFC 171
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Hinton)
22 December 2017
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
EVIDENCE - WITNESSES - SWEARING AND OATHS - CAPACITY IN GENERAL - YOUNG CHILDREN
Appeal against conviction.
The appellant was found guilty by a jury in the District Court of two counts of aggravated indecent assault. He appeals against the convictions on the ground that the Judge erred in admitting into evidence pursuant to s 13BA of the Evidence Act 1929 (SA) an audio visual record of interview of the complainant when there was no evidence as to her capacity to give sworn or unsworn evidence at the time of the interview.
The complainant was almost 12 years old at the time of the interview. During the interview, the police officer did not ask her whether she understood the difference between the truth and a lie or that it was important to tell the truth or whether she would tell the truth.
The appellant contends that s 13BA(3)(b) of the Evidence Act requires that the witness be asked questions during the interview about his or her understanding of the difference between the truth and a lie and the importance of telling the truth and indicate that he or she will tell the truth. He contends that s 13BA(3)(b) requires the Court to assess the witness’s level of understanding by reference to information at the time of the interview rather than information obtained at any time thereafter.
The Director contends that s 9 of the Evidence Act applies directly to evidence of a witness admitted under s 13BA.
Held by Blue J (Kourakis CJ and Hinton J agreeing) dismissing the appeal:
1. Section 9 does not apply to evidence of a witness admitted under s13BA of the Evidence Act when the recording has been made pursuant to Part 17 Division 3 of the Summary Offences Act 1953 (SA) (at [41]-[42]).
2. The question whether there is material capable of satisfying a judge that a person was capable of giving sworn or unsworn evidence at the time of the interview will depend on the facts and circumstances in each individual case. There are no a priori rules or limitations as contended by the appellant (at [47]).
3. The Judge was entitled to have regard to the complainant’s answers on questioning by the Judge (at [50]).
4. Having regard to the material before the Judge, the Judge was entitled to be satisfied that the complainant was capable at the time of the interview of giving sworn or unsworn evidence (at [51]).
5. Appeal dismissed (at [52]).
Criminal Law Consolidation Act 1935 (SA) s.56; Evidence Act 1929 (SA) S 9, 13BA and 12AB; Summary Offences Act 1953 (SA) Part 17 Division 3, referred to.

R v SPARKS
[2017] SASCFC 171
Court of Criminal Appeal: Kourakis CJ, Blue and Hinton JJ
KOURAKIS CJ:

I would dismiss the appeal for the reasons given by Blue J.
BLUE J:
This is an appeal against conviction.
The appellant, Justin Scott Sparks, was tried in the District Court before a Judge and jury for three counts of aggravated indecent assault[1] committed between 1 September and 29 October 2015. He was found guilty of the second and third counts. The jury could not agree on a verdict on the first count.
[1] Criminal Law Consolidation Act 1935 (SA) s 56.
The appellant appeals against the convictions on the ground that the Judge erred in admitting into evidence the audio visual record of the interview between the complainant and a police officer on 1 November 2015 when there was no evidence as to the complainant’s capacity to give sworn or unsworn evidence at the time.
Background
The complainant was born in November 2003. Her mother met the appellant in about 2004 and they had been in on again off again relationships over the years. In 2012 they resumed a relationship and in May 2014 their son was born. Later in 2014 they moved into a house in the southern suburbs.
The complainant gave evidence that before the school holidays preceding October 2015 she and the appellant were in the lounge while her mother was away. The appellant pushed her down, pulled down her pants and knickers and started doing a push-pull motion with his penis through his pants in the vicinity of her genital area. This was the subject of count 1.
The complainant gave evidence that on 29 October 2015 she and the appellant were in the lounge while her mother was at work. The appellant pushed her down onto all fours, pulled down her pants and knickers and started doing a push-pull motion with his penis through his pants in the vicinity of her genital area. This was the subject of count 2.
The complainant gave evidence that later that afternoon the appellant pushed her face down onto the bed, pulled his pants and her pants down and started doing the same push pull motion with his penis. This was the subject of count 3.
The complainant and her mother gave evidence that after her mother arrived home from work on 29 October 2015 they went to the shopping centre with the appellant. While they were alone together at the shopping centre, the complainant told her mother what had happened that day. Her mother then took her to the police station.
Later that night the appellant was arrested and charged with aggravated sexual assault.
On 1 November 2015 Senior Constable Paterson conducted an audio visually recorded interview of the complainant. The complainant was two weeks short of her twelfth birthday at that time. Senior Constable Paterson asked her a series of general questions about her family and school. Senior Constable Paterson then asked her about the events of the previous Thursday. She gave an account of those events as summarised above.
The trial
At the outset of the trial the appellant’s counsel opposed the admission of the audio visual record of interview pursuant to section 13BA of the Evidence Act 1929 (SA) (the Act) on the ground that the requirement under section 13BA(3)(b) that the court be satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made was not met.
The Judge viewed the audio visual record of the interview on the voir dire and heard submissions on its admissibility. The prosecutor invited the Judge to find from the record of interview that the complainant had been capable in November 2015 of giving sworn or unsworn evidence. The Judge was invited to question the complainant concerning her understanding in November 2015. The Judge expressed the provisional view that the complainant had been perfectly capable of giving sworn evidence. The Judge then questioned the complainant.
The complainant said that when she was speaking to Senior Constable Paterson she was telling her the truth, she knew that she needed to tell the truth and she knew that she may have to give evidence in the trial as well. The complainant said that she knew what it meant to tell the truth and gave an example of a lie.
The Judge ruled that he was satisfied of the various matters referred to in section 13BA and the audio visual record of interview was admissible subject to potential exclusion of individual sections.
The trial commenced before the jury. Senior Constable Paterson gave evidence of her interview of the complainant on 1 November 2015 and the DVD containing the audio visual record of the interview was tendered and received into evidence.
The complainant was called to give evidence and no issue was raised by the appellant about her capacity to give sworn evidence at the trial. The Judge gave permission for the complainant to be questioned on certain topics. The complainant gave limited evidence in chief, was cross-examined and gave limited evidence in re-examination.
Evidence was given by the complainant’s mother, Brevet Sergeant Rex who arrested and interviewed the appellant on 29 October 2015, Dr Claire McVicar who examined the complainant on 30 October 2015 and Louise Harken a forensic biologist who gave evidence that it was greater than 100 billion times more likely that DNA found on the appellant’s underpants belonged to the complainant than to another unknown person.
The audio visual record of interview of the appellant by Brevet Sergeant Rex was tendered by the prosecution. During the interview the appellant denied any sexual conduct with the complainant.
The appellant did not give or adduce evidence at trial.
Contentions on appeal
The appellant contends that the Judge could not have been satisfied that the complainant had the capacity to give sworn or unsworn evidence at the time of the interview on 1 November 2015 because Senior Constable Paterson did not ask any questions directed to capacity such as the commonly asked questions whether she understood the difference between the truth and a lie and that it was important to tell the truth and the complainant did not say that she would tell the truth.
The appellant contends that the situation could not be rectified by the Judge asking the complainant questions on the voir dire as to her state of mind at the time of the interview because that could not assist the Court on the critical question as to her understanding at the time of the interview.
The appellant contends that section 13BA(3)(b) requires the court to assess the witness’s level of understanding by reference to information as to his or her capacity at the time of the interview rather than the witness’s subjective retrospective view of his or her own level of understanding when asked about it at a later date.
The Director contends that evidence of a record of interview admitted under section 13BA is admitted as the evidence of the witness (in contradistinction to the position that applied under repealed section 34CA), the evidence therefore assumes the status of testimonial evidence and section 9 therefore applies to the evidence. On this basis the Director contends that the presumption in subsection 9(1) applies that the person was capable of giving sworn evidence at the time of the interview.
The Director contends that in any event the Judge was entitled to be satisfied of the complainant’s capacity to give sworn or unsworn evidence at the time of the interview by reason of her age and her answers during the interview.
The Director contends that the Judge was entitled to question the complainant as he did and was entitled to rely on the complainant’s answers in reaching satisfaction that she had the capacity to give sworn or unsworn evidence at the time of the interview.
The statutory regime
Section 9 of the Act addresses sworn and unsworn evidence. As to sworn evidence, section 9 leaves to the common law the criterion for capacity to give sworn evidence and modifies and confirms the common law in two respects. First subsection 9(1) modifies the common law by creating a presumption that a person is capable of giving sworn evidence in any proceedings. Secondly subsections 9(1) and (3) confirm the common law by contemplating an inquiry by the Judge into a witness’s capacity to give sworn evidence.
As to unsworn evidence, subsection 9(2) creates the criterion for a person to give unsworn evidence that the person knows the difference between the truth and a lie and requires that the Judge tell the person that it is important to tell the truth and that the person indicates that he or she will tell the truth.
Section 9 relevantly provides:
9—Unsworn evidence
(1)A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(2)If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—
(a)the judge—
(i)is satisfied that the person understands the difference between the truth and a lie; and
(ii)tells the person that it is important to tell the truth; and
(b)the person indicates that he or she will tell the truth.
(3)In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.
(4)If unsworn evidence is given under this section in a criminal trial, the judge—
(a)must explain to the jury the reason the evidence is unsworn; and
(b) may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
…
(6)Subject to this Act, this section does not apply to a statement made outside of a court admitted as evidence in any proceedings under an exception to the rule against hearsay at common law or under this Act.
In the case of a child, the presumption operates unless it is suggested that the child might not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence and there is no obligation on a trial judge to consider that question merely because the person is young.[2]
[2] R v P, BR [2004] SASC 323 at [119] per Mullighan J (Nyland and Anderson JJ agreeing).
Section 13BA was introduced into the Act with effect on 1 July 2016 as part of a comprehensive set of provisions for the admission in a criminal trial of evidence of a witness in the form of an audio visual record.[3] Those amendments apply to proceedings for an offence commenced but not determined as at 1 July 2016 as well as to new proceedings commenced after that date.[4]
[3] Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA).
[4] Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) Sch 1 as amended by Statutes Amendment (Attorney-General's Portfolio) Act 2016 (SA) s 27.
In broad terms there are three components of the scheme for the admission of evidence of a witness in the form of an audio visual record. The three components apply to a person who falls within one of two classes (collectively special witnesses), namely:
·a young child[5] being a child of or under the age of 14 years;[6]
·a person with a disability that adversely affects his or her capacity to give a coherent account of his or her experiences or to respond rationally to questions (a relevant disability).[7]
[5]    Evidence Act 1929 (SA) 4(1) definition of “young child”; Summary Offences Act 1953(SA) s 74EA(1)(a).
[6]    Evidence Act 1929 (SA) s 12AB(14) definition (a) of “witness to whom this section applies”; Summary Offences Act 1953(SA) s 74EA(1)(a).
[7]    Evidence Act 1929 (SA) s 12AB(14) definition (b) of “witness to whom this section applies”; Summary Offences Act 1953(SA) s 74EA(1)(b).
The first component is embodied in new section 12AB providing for evidence of special witnesses in trials of defined offences[8] to be given at a special hearing convened as a proceeding preliminary to the trial (a pre‑trial special hearing). When the court makes an order for a pre-trial special hearing, the evidence is given in advance of the trial and usually by way of evidence in chief, cross examination and re-examination. The audio visual record of the evidence is, subject to the provisions of section 13BA, admissible as evidence of the witness in the trial.[9] Essentially the evidence is the same as evidence given at trial except that it is given in advance of trial.
[8] Evidence Act 1929 (SA) s 12AB(14) definition of “offences to whom this section applies”.
[9] Evidence Act 1929 (SA) s 12BA(13).
The second component is embodied in new Part 17 Division 3 of the Summary Offences Act 1953(SA) (the Summary Offences Act) requiring interviews of special witnesses in relation to the investigation of defined offences[10] to be recorded by audio visual recording, the interview to be conducted by a prescribed interviewer and meet the prescribed requirements to the prescribed extent and the recording to be made in accordance with the regulations.[11] The audio visual record of the interview may be admitted pursuant to section 13BA as evidence of the witness in a subsequent trial if the interview was conducted and the recording was made in accordance with the requirements or the trial court if satisfied that the interests of justice require the admission of the evidence despite the non-compliance.[12] If an audio visual record was made of the statement of a witness to an investigating or other authority before 1 July 2016 as part of a formal interview process, it may be admitted as if it had been made pursuant to and in accordance with Part 17 Division 3 notwithstanding it would have been non-complying if made after 30 June 2016.[13]
[10] Summary Offences Act 1953(SA) s 74EA(2) definition of “serious offence against the person”.
[11] Summary Offences Act 1953(SA) s 74EB.
[12] Summary Offences Act 1953(SA) s 74EC.
[13] Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) Sch 1 cl 1(2) as amended by Statutes Amendment (Attorney-General's Portfolio) Act 2016 (SA) s 27.
The third component is embodied in new section 13BA which makes an audio visual record of the evidence of a witness admissible as evidence of the witness in the form of the audio visual record if the recording was made pursuant to section 12AB or Part 17 Division 3 and certain other substantive and procedural preconditions are met. Those preconditions include the court’s satisfaction as to the witness’s capacity to give sworn or unsworn evidence at the time the recording was made and the availability of the witness if required for further examination, cross examination or re-examination. The court retains a discretion not to admit the evidence even if the preconditions are satisfied.
Section 13BA provides:
13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings
(1)Subject to this section, the court may, in the trial of a charge of an offence order that the evidence of a witness be admitted in the form of an audio visual record.
(2)An application for an order under subsection (1) must—
(a)     be made in writing by the party wishing to have the audio visual record of the evidence admitted in the trial; and
(b)be filed in the court; and
(c)     within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and
(d)otherwise be made in accordance with the rules of court.
(3)An audio visual record of the evidence of a witness may be admitted under this section if—
(a)the recording has been made pursuant to—
(i)section 12AB; or
(ii)Part 17 Division 3 of the Summary Offences Act 1953; and
(b)     the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and
(c)     the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and
(d)     during the course of the trial, the witness is available, if required, for further examination, cross‑examination or re‑examination.
(4)The court's discretion to exclude evidence is not affected by subsection (3) and the court may—
(a)rule as inadmissible the whole or any part of the recording; or
(b)     before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.
(5)Despite subsection (3)(d), the witness cannot be further examined, cross‑examined or re‑examined on the evidence admitted in the trial without the permission of the court which may only be given, on application by a party to the proceedings—
(a)     if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or
(b)     if the witness gives evidence in the trial apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross‑examined or re‑examined; or
(c)     if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross‑examined or re‑examined.
(6)If a court admits evidence in the form of an audio visual record under this section, the judge must—
(a)     explain to the jury that the law allows the court to admit evidence in this form; and
(b)warn the jury—
(i)not to draw from the admission of evidence in that form any inference adverse to the defendant; and
(ii)not to allow the admission of evidence in that form to influence the weight to be given to the evidence.

The combination of section 13BA and Part 17 Division 3 operates in a very different manner to the former section 34CA which subject to the satisfaction of preconditions rendered admissible (subject to the court’s discretion) any out of court statement by a child 12 years or younger or person with a relevant disability.[14] In such a case the evidence was admitted as secondary evidence, ie evidence of what the person said to someone else.[15] By contrast evidence admitted under section 13BA is admitted as primary evidence, namely evidence of the witness in the form of an audio visual record.
[14] R v J, JA [2009] SASC 401, (2009) 105 SASR 563 at [14] per Duggan J (with whom Nyland J agreed) and [158] per White J.
[15] R v J, JA (2009) 105 SASR 563 at [14] and [77]-[81] per Duggan J (with whom Nyland J agreed) and [158] per White J.
The relationship between section 13BA and section 9
The Director contends that the evidence of a record of interview admitted under section 13BA is admitted as the evidence of the witness; the evidence therefore assumes the status of testimonial evidence; section 9 therefore applies to the evidence; and the presumption in subsection 9(1) therefore applies.
The Director’s first contention may be accepted. Section 13BA refers to the court “admit[ting] evidence in the form of an audio visual record” (subsection (6)); ordering “that the evidence of a witness be admitted in the form of an audio visual record” (subsection (1)) and the court “admit[ting] evidence in this form” (subsection (6)(a)). Subsection (6)(b) requires that the Judge warn the jury not to allow the admission of evidence in that form to influence the weight to be given to the evidence.
The Director’s second contention may be partially accepted. By reason of the provisions referred to in the previous paragraph, the evidence of the witness contained in the audio visual record is equated to testimonial evidence. However, in the case of an out of court interview pursuant to Part 17 Division 3, the potential witness’s answers are not given in court, are not given in a proceeding (which often will not exist at the time of the interview) and are not testimonial.[16]
[16] Compare Butera v Director of State Prosecutionsfor the State of Victoria (1987) 164 CLR 180 at 184 where Mason CJ, Brennan and Deane JJ said that "A tape recording may be used to produce a form of evidence which is different from both oral testimony and documentary evidence."
The Director’s third contention must be rejected. Subsection 9(1) refers to the giving of “sworn evidence in any proceedings”. The potential witness’s answers during a Part 17 Division 3 interview are not evidence at the time they are given, are not given in a proceeding and are not sworn evidence. The procedure referred to in subsections 9(1), (2) and (3) to be followed by the judge in respect of a witness before the witness gives evidence is incapable of applying to the interview. Section 9 does not apply to the interview.
The Director’s fourth contention falls consequentially. In any event subsection 13BA(3)(b) requires the trial judge to be satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made
The achievement of satisfaction under section 13BA(3)(a)
Section 13BA(3)(b) requires a judge to be satisfied, before admitting the evidence of a witness in the form of an audio visual record, as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made.
This requirement directs attention to the common law and statutory rules governing capacity to give sworn and unsworn evidence. In relation to sworn evidence, it is the common law which identifies the criterion for the capacity of a person to give sworn evidence. That criterion is that the person understands the nature and consequences of the obligation to be truthful,[17] namely in modern times that he or she has an obligation to be truthful, of the solemnity of the occasion, of the importance of being truthful to the just administration of the law and of the moral and legal consequences of not being truthful.[18]
[17] R v Brasier (1779) 1 Leach 199, 168 ER 202 at 202-203.
[18] R v Climas (Question of Law Reserved) [1999] SASC 457, (1999) 74 SASR 411 at [62], [134]-[138] per Lander J (with whom Millhouse J agreed); R v Lomman [2014] SASCFC 55, (2014) 119 SASR 463 at [5] per Kourakis CJ (with whom Peek J agreed).
In relation to unsworn evidence, subsection 9(2) identifies the criterion for the capacity of the person to give unsworn evidence. This criterion is that the person understands the difference between the truth and a lie. In addition it is a precondition to a person giving unsworn evidence in a court proceeding that the Judge tell the person that it is important to tell the truth and that the person indicates that he or she will tell the truth.
The criterion for giving sworn evidence is higher than for giving unsworn evidence. Section 13BA(3)(b) only requires the judge to be satisfied of the lower criterion for giving unsworn evidence.
The question whether there is material capable of satisfying a judge that a person was capable of giving sworn or unsworn evidence at the time of the interview will depend on the facts and circumstances in each individual case. There are no a priori rules such as the limitation suggested by the appellant that the interviewer must ask the person whether he or she understands the difference between a truth and a lie or tell the person that it is important to tell the truth or that the person says that he or she will tell the truth. Nor is there an a priori rule that the material on which the judge relies must be confined to statements made contemporaneously with the interview and cannot extend to subsequent statements by the witness.
In the present case, the Judge was entitled to have regard to the complainant’s age at the time of the interview being only two weeks short of her twelfth birthday. The Judge was entitled to have regard to the complainant’s answers, demeanour and conduct during the interview. The complainant’s answers during the interview were capable of satisfying the Judge that the complainant understood the difference between the truth and a lie. Towards the beginning of the interview the complainant made a joke that, the previous evening being Halloween, she had gone trick or treating and had lost her memory. This was capable of satisfying the Judge that she knew the difference between the truth and a lie. Throughout the interview the complainant answered Senior Constable Paterson’s question in a serious and solemn manner capable of satisfying the Judge that she was endeavouring to tell the truth to the best of her recollection and understood the importance of doing so.
The record of interview coupled with the complainant’s age comprised material capable of satisfying the Judge that the complainant was capable at the time of the interview of giving sworn or unsworn evidence.
The complainant’s answers on questioning by the Judge comprised additional material to which the Judge was entitled to have regard. The complainant had been almost 12 at the time of the interview and was 13 at the time of the trial. Each case must be considered by reference to its own circumstances. If a witness was very young at the time of the interview and/or the time gap between the interview and the trial was very large, answers to a judge’s questions at trial may have negligible or no probative value. In the present case, the distance in time between the two occasions was not so remote and the complainant’s ostensible understanding at the age of almost 12 was not so limited that the complainant’s answers to the Judge’s questions were incapable of having probative value on the relevant issue.
Having regard to the material before the Judge, the Judge was entitled to be satisfied that the complainant was capable at the time of the interview of giving sworn or unsworn evidence.
Conclusion
No error has been demonstrated in the Judge’s admission of the complainant’s evidence in the form of the audio visual record of interview. I would dismiss the appeal.
HINTON J:
I would dismiss the appeal. I agree with the reasons of Blue J and have nothing to add.