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 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.
It may be observed that each of s 13BA(3)(a)-(d) must be satisfied before the audio visual record may be admitted into evidence.
The interviews conducted with SW, JW and IW all took place at the Port Adelaide Police Station on 29 November 2015, the same day as that upon which Mr Edgar died. SW and JW were interviewed by Constable Burton, whilst IW was interviewed by Senior Constable Harris. Both Constable Burton and Senior Constable Harris were stationed at the Western Adelaide Family Violence Investigation section.
When interviewed by the police officers mentioned above SW, JW and IW were 11, 10 and nine years old respectively. They are sisters who at the time of their interviews lived with Tammy Wilson, their “Nan”, and her partner, Mr Edgar. They were in the house at the time that Mr Edgar died.
Section 74EB of the Summary Offences Act 1953 (SA) is contained in Part 17 Division 3 of that Act. Relevantly that section demands that where a child of or under the age of 14 is to be interviewed as a potential witness in relation to the investigation of the offence of murder or manslaughter or other prescribed serious offences against the person, an audio visual recording of the interview must be made in accordance with the regulations, the interview must be conducted by a prescribed interviewer, and the manner in which the interview is conducted must meet the prescribed requirements to the prescribed extent. Part 17 Division 3 was inserted into the Summary Offences Act 1953 (SA) by s 26 of the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) (No 16 of 2015). It came into operation on 1 July 2016, approximately seven months after the interviews with SW, JW and IW were conducted.
The transitional provision to the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) provided:
Schedule 1—Transitional provision
1—Transitional provision
(1)The amendments made by Part 3 of this Act to the Evidence Act 1929 are intended to apply in respect of—
(a) proceedings for a sexual offence commenced but not determined before the commencement of this clause; and
(b) proceedings for a sexual offence commenced after the commencement of this clause.
(2)An order made by a court under the Evidence Act 1929 as in force immediately before the commencement of this clause will remain in force according to its terms.
The amendments to which cl 1(1) referred included the insertion of s 13BA into the Evidence Act 1929 (SA) by s 10 of the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA).
Subsequently the transitional provision contained in sch 1 of the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) was amended by the Statutes Amendment (Attorney-General’s Portfolio) Act 2016 (SA). The amendment provided:
27—Amendment of Schedule 1—Transitional provision
(1)Schedule 1, clause 1(1)—delete "sexual" wherever occurring
(2)Schedule 1, clause 1(2)—delete subclause (2) and substitute:
(2) An audio visual record of the statement of a witness to whom this subclause applies made to an investigating or other authority before the commencement of section 10 of this Act as part of a formal interview process in relation to the investigation of an alleged offence may, after the commencement of that section, be admitted under section 13BA of the Evidence Act 1929 as evidence in the trial of a charge of the offence as if the recording had been made pursuant to Division 3 of Part 17 of the Summary Offences Act 1953 in accordance with the requirements of that Division.
Note—
Section 10 of this Act inserts section 13BA into the Evidence Act 1929.
(3) Subclause (2) applies—
(a)to a witness who is—
(i)a child of or under the age of 14 years; or
(ii)a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions; and
(b)despite section 34LA(2)(c) of the Evidence Act 1929.
The relevant effect of the amendment to the transitional provision contained in sch 1 of the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) lies in the fact that, if the interviews conducted with each of SW, JW and IW can be brought within its terms, s 13BA(3)(a)(ii) of the Evidence Act may be taken as satisfied.
An audio visual record of the statement of a witness to which sub-cl (2) applies is an audio visual record of the statement of, relevantly, a child under the age of 14 years, made to an investigating or other authority before the commencement of s 10 of the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) as part of a formal interview process in relation to the investigation of an alleged offence. As mentioned, the interviews with each of SW, JW and IW, conducted on 29 November 2015, were all conducted before the commencement of s 10 of the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) on 1 July 2016. Further, SW, JW and IW were all under 14 years of age at that time.
In my view each of the interviews conducted were part of a formal interview process conducted in relation to the investigation of an alleged offence. I arrive at this conclusion having regard primarily to the statements of Constable Burton and Senior Constable Harris in addition to the manner in which those officers conducted themselves and each of the interviews. The statements established that the three sisters were transported from their home at Athol Park, the location at which Mr Edgar was killed, to the Port Adelaide Police Station as they were potential witnesses to the homicide. The investigating detectives requested that Constable Burton and Senior Constable Harris interview the children whilst the detectives dealt with Ms Wilson. I infer from the fact of that request, the division of duties, and the positions held by Constable Burton and Senior Constable Harris that it is likely Constable Burton and Senior Constable Harris had special training in relation to children and family violence.
Turning to each of the interviews; that the children were interviewed separately, that the interviews were recorded, and the content of the introduction and conclusion to each interview indicate, in my view, a formal process. The inquiry made of each child in the respective interviews to varying degrees as to their understanding of the truth is indicative not just of a formal process, but a forensic purpose. The subject matter of each interview is plainly the investigation of the homicide. Lastly, in the main the questions asked by the Constable and Senior Constable are non-leading questions.
Accordingly, I am satisfied that each of the interviews constitute audio visual recordings of the statement of a witness to which sub-cl (2) of sch 1 of the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) as amended applies. It follows that each interview may, s 10 of that Act having now commenced, be admitted under s 13BA of the Evidence Act as evidence in the trial of a charge of the offence as if the recording had been made pursuant to Part 17 Division 3 of the Summary Offences Act 1953(SA) in accordance with the requirements of that Division.
Mr Vadasz, counsel for Mr Willoughby, referred to the Summary Offences Regulations 2016 (SA) and the fact that there was nothing to indicate that the interviews had been conducted by a prescribed interviewer within the meaning of regulation 20. That may be so. However, it is a factor that only goes to the question of whether to admit the interviews. That is, the deeming effect of sch 1(2) of the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) as amended does not render actual compliance with regulation 20 necessary to admission.
I am, therefore, satisfied that as the requirements of sch 1(2) of the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) as amended are met, I may proceed as if s 13BA(3)(a)(ii) of the Evidence Act is satisfied.
I pass over s 13BA(3)(b) momentarily.
Ms Telfer SC, counsel for the Director, informed the Court that statements from Constable Burton and Senior Constable Harris to which were annexed transcripts of the interviews conducted with SW, JW and IW were served upon the solicitors for the defendant on 28 January 2016. On 9 February 2016 those same solicitors were advised of the availability of the recordings for viewing should it be required. Mr Vadasz did not dispute this. On 10 May 2017, Mr Vadasz confirmed he had had an opportunity to view the audio-visual recordings of the interviews conducted with the children.[1] I am satisfied, therefore, that s 13BA(3)(c) is satisfied.
[1] Transcript, 10 May 2017, page 197.
Ms Telfer also advised that each of SW, JW and IW, were available, if required, for further examination, cross-examination or re-examination. Thus s 13BA(3)(d) is satisfied.
Returning to s 13BA(3)(b). I did not have the benefit of fulsome submissions on the relationship of s 13BA(3)(b) and s 9 of the Evidence Act. The language of s 13BA(3)(b) suggests that the Court is not entitled to rely upon the presumption contained in s 9(1) of the Evidence Act and must conduct an inquiry into the question of the capacity of the person interviewed to give sworn or unsworn evidence. Again, without attempting any exhaustive analysis of s 13BA, it appears to contemplate the conduct of an inquiry not unlike that subject of s 9(2). That said, there is an important difference. The inquiry under s 13BA(3)(b) is to be conducted as to the witness’ capacity to give sworn or unsworn evidence as at the time of the making of the audio visual record. The inquiry is thus different from that undertaken under s 9(2) in that under s 9(2) the inquiry relates to the capacity to give sworn or unsworn evidence in a proceeding, not an inquiry as to the capacity to have done so at an earlier time in a special pre-hearing or in an interview with the authorities. Under s 13BA it is unlikely that a judge will be assisted, if at all, by inquiring of a child as to what their understanding of the difference between the truth and a lie was where the recording was made a significant time before trial. Ordinarily the greatest assistance can be expected to be obtained from the content of the interview itself. Parliament must have contemplated as much.
I have watched Exhibit P16 and each of the interviews conducted with SW, JW and IW more than once.
SW was 11 years old at the time of her interview. She was interviewed for approximately 14 minutes. Toward the beginning of the interview Constable Burton asks SW a series of questions similar to the questions asked by the prosecutor in R v Starrett.[2] As in Starrett those questions and answers may be accepted as indicating that SW knew the difference between the truth and a lie.[3] Nothing in the interview causes me to doubt her answers in this regard. I appreciate that initially when she is asked whether she knows the difference between the truth and a lie she answers saying, “I can tell in their eyes”. I understand her to be saying that she can tell whether a person is telling the truth or a lie by looking into their eyes. That strikes me as nothing more than an 11 year old child’s attempt to indicate how she can tell if a person is lying. Whilst one might doubt the accuracy of the method, it is consistent with an understanding of the difference between the truth and a lie. More than that, it suggests experience of the concepts.
[2] (2002) 82 SASR 115 at [8].
[3] (2002) 82 SASR 115 at [23].
Further, SW correctly identified statements as being the truth or a lie when provided with examples by Constable Burton to test her understanding. When asked whether the statement that her teddy bear was wearing a blue t-shirt was the truth or a lie, SW correctly answered that the statement was the truth. When told that the teddy bear was dressed as Santa Claus, SW correctly responded that the statement was a lie. SW agreed “to make sure that everything we speak about today is just truths”. Consistent with her word, SW appeared focused on telling the Constable only what she saw and heard. I do not detect any tendency on SW’s part to embellish or exaggerate. Her answers are all appropriate to the questions asked. Consistent with this she stated twice that she did not really know what happened and subsequently said that she did not see what happened to Mr Willoughby and Mr Edgar. That suggests adherence to her promise only to tell the truth.
True it is that initially SW said that she did not know if Mr Willoughby had a knife, then said he did, but conceded that she only thought that because she saw blood on the floor. Later again she said she did not see Mr Willoughby with a knife but was told he had a knife. I do not take this as indicating any incapacity to understand the difference between the truth and a lie. It is natural to expect of an intelligent child that they will attempt to make sense of what they have seen, that is not to be untruthful. Her capacity to know the difference between the truth and a lie is demonstrated by her concessions as to the source of her knowledge.
I am satisfied that at the time of her interview, SW understood the difference between the truth and a lie and understood the importance of telling the truth. I am satisfied that she had the capacity to promise to tell the truth and understood what such promise meant and required of her.
JW was 10 at the time of her interview. She also was interviewed by Constable Burton. Her interview lasted approximately 11 minutes. As with SW, at the commencement of the interview Constable Burton asked a series of questions similar to those asked by the prosecutor in R v Starrett. Again, as in Starrett, those questions and the answers may be taken as indicating that JW knew the difference between the truth and a lie. Like her sister, JW was able to correctly answer questions asked by the interviewer about her teddy bear designed to test her understanding of the difference between the truth and a lie. She was asked only to tell the interviewer the truth. She agreed to do so.
JW is a bright and intelligent child. She corrected the interviewer when the interviewer referred to the bedroom in which she was as “her bedroom”; it was “our” bedroom. During the interview JW relayed what she saw and heard. She was cautious on a number of occasions to advise that that was “all I know”. I detect no sign of JW not possessing the cognitive capacity to accurately relate what she experienced. All answers given were appropriate to the questions asked. I detect nothing to indicate that she did not know the difference between the truth and a lie and was not be capable of complying with her promise to tell the truth.
I am satisfied that JW had the capacity to give unsworn evidence as at the time of her interview.
IW was nine at the time of her interview. She was interviewed for approximately 12 and a half minutes. Like her older sister she too is bright and intelligent. The interviewer asked her if she knew what the truth was. She responded by saying, “the truth is I was in my room.” She was not asked if she knew the difference between the truth and a lie. However, implicit in her response is the assertion to the effect, “I know what the truth is about what occurred, and here it is …”. When the interviewer referred to IW being with her “mum” when the stabbing happened, IW said no, correcting the interviewer and stating that she was in fact with her “Nan”. At a later point in the interview, after telling what she had seen, she concluded by saying, “that’s it, that’s all I saw”. At other points she corrected herself. She was clearly concerned only to narrate what she saw and heard. In my view, IW conducted herself on the basis that she would only tell what she knew to have occurred of her own experience. That is indicative of an understanding of the difference between the truth and making something up, an ability to promise to only tell the truth, and an understanding that she was only to relate what she knew to be the truth.
I am satisfied that IW had the capacity to give unsworn evidence as at the time she was interviewed.
In arriving at my conclusion in relation to each interview, I have given consideration to Mr Vadasz’ submission that the interviewers should have asked each child to explain to them, by way of giving an example, what they understood to be a lie and what they understood to be the truth. To so proceed may or may not be appropriate, but the question is the significance of having not done so. Does it cause me to think that in relation to each child they did not know the difference between the truth and a lie and the importance of telling the truth? The fact that none of the sisters were asked to explain, in their own words, what they understood to be a lie and what they understood to be the truth, does not cause me to doubt the conclusions.

It follows that I am satisfied that each of the criteria contained in s 13BA(3) were satisfied in relation to each of the interviews of SW, JW and IW. Being so satisfied the audio visual records of the interviews are admissible subject to discretionary exclusion. The content of each interview is relevant. If each child was called to give, and permitted to give, unsworn evidence in court, and proceeded to give evidence that accords with the content of the audio visual records of the interviews conducted in November 2015, that evidence would be admissible. No submission was made that the evidence was more prejudicial than probative nor that any relevant unfairness would arise if the interviews were admitted. The only submission made relevant to the exercise of the discretion to exclude the evidence was that there was nothing to suggest that the interviewers were prescribed interviewers within the meaning of regulation 20 of the Summary Offences Regulations 2016 (SA). That may or may not be so. It does not cause me to think that, the requirements of s 13BA being met, the audio visual recordings of the interviews conducted with each of SW, JW and IW should not be admitted into evidence.
Accordingly, for these reasons, I granted the Director’s applications in relation to each of the said audio visual recordings and admitted the recordings into evidence.