R v TR - [2023] SADC 131

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Interlocutory Application)
R v TR
[2023] SADC 131
Reasons for Ruling of his Honour Judge Durrant
4 October 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
Accused charged with sexual abuse of a child - three recorded interviews of child - application to exclude second and third interview from trial - prescribed requirements for conduct of interviews - whether vulnerable witness appears to understand she must tell the truth - assessment will depend on individual facts and circumstances of case - no requirement particular questions be asked - second interview and third interview met the prescribed requirements - vulnerable witness appears to understand she must tell the truth.
Held: Application to exclude second and third interview from being led at trial dismissed.
Summary Offences Act 1953 (SA) s 74; R v Sparks (SA) [2017] SASCFC 171, referred to.

R v TR
[2023] SADC 131
Introduction

The accused has been charged with sexual abuse of a child.
Three recorded interviews of that child, L, are proposed to be played to the jury by the prosecution.
The accused has made a pre-trial application to exclude the second and third of those interviews from being led as evidence.
The First Interview
On 9 June 2020, commencing at 10.49am, L was interviewed by Senior Constable Morella at her school. She was 9 years old.
SC Morella told L it was her job to talk to children about things that had happened. She said L could tell her the truth.
The interviewer sought to establish L understood the difference between truth and a lie in the conventional way.
In response to a question about the colour of the top the officer had been wearing, L asked whether she had a top on underneath.
After the officer confirmed she was wearing a grey top underneath, L correctly noted the officer had told her a lie.
No sexual acts were mentioned by L in the first interview.
The officer established with L who she could trust and talk to about bad touching. L said her mother was a such a person.
The Second Interview
The second interview took place later that same day at 4.31pm, but this time at the Mt Gambier Police Station.
At the commencement of that interview, L said to SC Morella, ‘I didn’t tell you the truth last time’. Morella said that ‘was alright’.
SC Morella asked L why she had come to see her. L said ‘[b]ecause umm I didn’t tell you the truth’. Morella replied ‘ok’, and L said ‘[u]mm and I told my mum’. L said her mum had then said, ‘we are coming back here to actually tell you what happened’.
SC Morella asked, ‘are you going to tell me what happened?’ L said, ‘I wasn’t sure, but I can now I think because mum is here with me’. L told of sexual acts the accused had engaged in with her.
The Third Interview
The third interview took place on 15 June 2021.
SC Morella asked questions of L, like those questions asked in the first interview, about the top she had been wearing,
The second interview was played to L. While watching that interview, she elaborated about the sexual acts she had disclosed in the second interview.
Submissions of the accused
Mrs Shaw KC submitted the conduct of the second interview had not complied with s 74EB of the Summary Offences Act 1953 (SA) and r23 of the Summary Offences Regulations 2016 (SA).
Those provisions, it was submitted, required strict compliance, and required L to appear to understand she must tell the truth.
Strict compliance could only be established, it was submitted, by application of the methodology set out in SAPOL General Order- Interviewing Suspects and Vulnerable Witnesses. It required her to be asked on each occasion the conventional questions asked in the first and third interviews.
The failure of SC Morella to adopt that methodology in the second interview, it was submitted, was fatal to its admissibility.
As the second interview had been unlawful, by playing it to L, that unlawfulness had infected the third interview.
It followed, submitted Mrs Shaw, both the second and third interview should be excluded from the trial.
Submissions of prosecution
Mr Walker for the prosecution submitted the application to exclude proceeded on a flawed basis there had been a strict statutory requirement for each interview to contain the questions asked in the first and third.
In R v Sparks,[1] it was submitted, the asserted failure to take that approach did not found illegality as contended by the accused.
[1] R v Sparks [2017] SASCFC 171 per Blue J at [47].
Further, it was submitted, acceptance the first interview was admissible meant the accused accepted L had at 10.31am understood the difference between truth and lies and the importance of telling the truth.
Finally, submitted the prosecution, satisfaction L had acted on such an understanding was not part of the test. The test was of capacity; that L could understand those concepts.
Consideration
To be admissible, the interviews must have been conducted in accordance with s.74EB of the Summary Offences Act 1953 (SA).
Particularly, the way each interview was conducted must have met the prescribed requirements to the prescribed extent.[2]
[2] Summary Offences Act 1953 (SA) s.74EB(c).
An interview with a vulnerable witness such as L will meet the prescribed requirements if ‘the vulnerable witness appears to understand that he or she must tell the truth’.[3]
[3] Summary Offences Regulations 2016 (SA) r. 23(7)(h).
The accused submitted that could only be established adopting the methodology identified in the SAPOL general order for interviewing vulnerable witnesses. The accused said such questions had been asked in the first and third interviews.
In R v Sparks,[4] police had not asked the complainant whether she understood the difference between truth and lie, that it was important to tell the truth and whether she would tell the truth.
[4] [2017] SASFC 171.
At issue in that case was whether a vulnerable person had been capable of giving evidence. The Court of Criminal Appeal held the trial judge entitled to have regard to the complainant’s answers to his questioning in making that assessment.
Further, the Court held there are no a priori rules or limitations to such an assessment; it will depend on the facts and circumstances of each individual case.[5]
[5] Ibid per Blue J at [47].
In my assessment of whether L appears in the second interview to understand she must tell the truth, I have had regard to what she said, her exchanges in the first interview and the facts and circumstances of those interviews.
It is not a requirement questions of the kind asked in the first and third interviews must be asked.
I am satisfied and find the second interview met the prescribed requirements and L appears to understand she must tell the truth.
First, her answers to the questions asked in the first interview had that affect. They had been asked just a few hours before.
Second, those questions and answers remained operative. L said at the outset of the second interview she had not told the truth.
Third, L had been at school during the first interview but by the second, school had completed and L had told her mum what had happened with the accused.
Fourth, L appears to understand she must tell the truth when she said, ‘I wasn’t sure, but I can now I think because mum’s here with me’.
For those reasons, I decline to make orders 1 and 2 sought in the amended interlocutory application FDN74.