R v Willoughby - [2017] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILLOUGHBY
[2017] SASC 190
Ruling of The Honourable Justice Hinton
15 December 2017
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - OTHER CASES
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
At the hearing of the trial of the objective elements of murder under s 269G of the Criminal Law Consolidation Act 1935 (SA), the Director of Public Prosecutions applied under s 13BA of the Evidence Act 1929 (SA) for an order that audio visual recordings of interviews conducted with three children under the age of 14 – SW, JW and IW – be admitted in evidence. The application was opposed.
Held, granting the application:
1. The requirements of s 13BA(3) are satisfied in relation to each of the interviews of SW, JW and IW.
2. The interviews should be admitted, there being no reason to exclude them.
Evidence Act 1929 (SA); Summary Offences Act 1953 (SA); Criminal Law Consolidation Act 1935 (SA); Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA); Statutes Amendment (Attorney-General's Portfolio) Act 2016 (SA), referred to.
R v Starrett (2002) 82 SASR 115, considered.

R v WILLOUGHBY
[2017] SASC 190
Criminal: Application
HINTON J.

Woonun Willoughby stands charged with the murder of Oden Edgar. The Court has ordered that an investigation be conducted into Mr Willoughby’s mental competence to commit the offence. As trial Judge I have determined that under s 269G of the Criminal Law Consolidation Act 1935 (SA) the investigation should proceed by way of the trial of the objective elements of the offence first. Mr Willoughby has elected for the trial to be heard by a judge sitting alone.
At the hearing of the trial of the objective elements the Director of Public Prosecutions (the Director) applied under s 13BA of the Evidence Act 1929 (SA) (the Evidence Act) for an order that audio visual recordings of interviews conducted with three children under the age of 14 – SW, JW and IW – be admitted in evidence.
The application was opposed.
On 10 May 2017 I granted the Director’s application. My reasons for doing so follow.
For the purposes of the application the audio visual records of the interviews conducted with each of SW, JW and IW were tendered; (Exhibit P16). I also received three affidavits from Ms J Litster, one in relation to each child, all affirmed on 28 April 2017, in addition to statements from Constable Burton, dated 5 January 2016, and Senior Constable Harris, dated 16 December 2015, to which transcripts of the interviews were annexed.
Section 13BA(3) of the Evidence Act provides:
(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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Willoughby

Details

AGLC: R v Willoughby [2017] SASC 190
Case: [2017] SASC 190
Decision Date: 15 December 2017

CaseChat Overview and Summary

The case of R v Willoughby before the South Australian Supreme Court involved the admissibility of audio-visual recordings of interviews with three child witnesses in a murder trial. The Director of Public Prosecutions sought an order for the recordings to be admitted under s 13BA of the Evidence Act 1929 (SA). The primary legal issue before the court was whether the statutory provisions regarding the admissibility of evidence from children, specifically s 13BA of the Evidence Act, applied to the present case, and if so, whether the judge should exercise their discretion to admit or exclude the evidence.

The court considered the statutory provisions outlined in s 13BA of the Evidence Act 1929 (SA), which pertain to the admissibility of evidence of children, and weighed this against the general principles of fairness and the integrity of the judicial process. The court also took into account the age of the child witnesses, the nature of the evidence, and the circumstances in which the interviews were conducted. In determining whether to exercise its discretion to admit or exclude the evidence, the court assessed the potential impact on the children and the probative value of the evidence. Ultimately, the court found that the statutory provisions did apply, and that the recordings should be admitted as evidence, given their relevance and the measures taken to ensure the children's welfare.

Orders