R v YL
[2004] ACTSC 115
R v YL [2004] ACTSC 115 (27 October 2004)
COURTS AND THE JUDICIAL SYSTEM – whether discretion to refuse to exercise coercive powers to compel 7 year old child to enter court and give evidence against his will – evidence by psychiatrist that forcing the child to do so could cause significant harm – application by Crown to discharge jury in order to test rulings of trial judge – attempt to enter nolle prosequi in order to test rulings – general principles – relevance of rights guaranteed by Human Rights Act 2004 (ACT).
EVIDENCE – objection under s 18 of the Evidence Act 1995 (Cth) to giving evidence – whether s 19 precludes the application of s 18 to “domestic violence offences” mentioned in s 9 of the Protection Orders Act 2001 (ACT) – application of s 10A of the Acts Interpretation Act 1901 (Cth) – whether 7 year old child compellable – whether discretion to refuse to exercise coercive powers to force child to enter court and give evidence against his will – relevance of rights guaranteed by Human Rights Act 2004 (ACT).
EVIDENCE – whether child an “unavailable” witness when court refuses to compel him to enter court and give evidence – whether evidence of prior representations by the child admissible under s 65 of the Evidence Act 1995 (Cth)– whether rejection of such evidence required by s 137 of the Evidence Act 1995 (Cth).
Evidence Act 1995 (Cth), ss 18, 137, 19, 8, 65, 67, 63(2), 64(2), 65(2,3,8)
Director of Public Prosecutions Act 1990 (ACT), s 7(6)
Crimes Act 1900 (ACT), ss 287, 402
Domestic Violence Act 1986 (ACT)
Domestic Violence Agencies Act 1986 (ACT)
Protection Orders Act 2001(ACT), schedule 1, s 9
Acts Interpretation Act 1901 (Cth), s 10A
Supreme Court Act 1933 (ACT), 20, 37S
Human Rights Act 2004 (ACT), s 11, 30(1), 30(3), 21, 22
Legislation Act 2001 (ACT), 139
Criminal Code Act 1989 (Qld), s 669A
R v Wright [2004] ACTSC 83
Mechanical & General Inventions Co. Ltd and Lehwess v Austin and Austin Motor Co. (1935) A.C. 346
Question of Law Reserved on Acquittal Case (No 3 of 1995) (1996) 66 SASR 450
Broome v Chenoweth (1946) 73 CLR 583
Poole v The Queen (1961) AC 223
Barton v The Queen (1980) 147 CLR 75
Maxwell v The Queen (1996) 135 ALR 1
Jago v The District Court of New South Wales (1989) 168 CLR 23
Williams v Spautz (1992) 174 CLR 509
Walton v Gardiner (1993) 177 CLR 378
R v Jell, ex parte Attorney-General (1991) 1 Qd R 48
R vFerguson,ex parte Attorney-General [1991] 1 Qd R 35
Doylev R (1988) 2 Qd R 434
Colman QC, G., Cross Examination; A Practical Handbook, Juta & Co. Ltd., Cape Town, 1970
Jeremy Bentham, Rationale of Judicial Evidence, Specially applied to English Practice, Vol 5, London, Hunt & Clark, 1827
Firak, N.L., ‘Ethical Fictions as Ethical Foundations: Justifying Professional Ethics’ (1986) 24 Osgoode Hall L. J. 35
Curtis, C. P., Law Large as Life, Simon & Schuster, New York, 1959
Cardoza, B. N., ‘Faith and a Doubting World’, Selected Writings of Benjamin Nathan Cardoza, ed by Hall, M. E., Matthew Bender, New York, 1947
No. SCC 27 of 2004
Judge: Crispin J
Supreme Court of the ACT
Date: 27 October 2004
IN THE SUPREME COURT OF THE )
) No. SCC 27 of 2004
AUSTRALIAN CAPITAL TERRITORY )
R
v
YL
REASONS FOR RULINGS
Judge: Crispin J
Date: 27 October 2004
Place: Canberra
REASONS FOR RULINGS
On 13 October 2004 the accused was arraigned on two counts, the first alleging that on 27 November 2003 she had committed an offence of assault occasioning actual bodily harm and the second alleging, in the alternative, that she had committed an offence of common assault. The offences were alleged to have been committed upon her stepson, who was then only six years old. In view of his age, I ordered that his name not be published and for present purposes he may be referred to simply as “the child”. I also ordered that the name of the accused not be published because the child was still living with her and publication of her name might lead to his identification.
The trial was listed before me on the day before the arraignment to enable counsel to raise a number of issues in the absence of the jury. In particular, Mr Thomas, who appeared for the accused, indicated that he intended to challenge the child’s competence to give sworn evidence. During the course of his opening submissions Mr Thomas also expressed concern about the likelihood of the child suffering significant stress by being forced to give evidence against his stepmother. It was common ground that the child had been taken from his father and stepmother when she was charged but that he had subsequently been returned to their care by an order of the Childrens Court after a family assessment had been undertaken by an eminent child psychiatrist, Dr Brent Waters. I was also informed that the child was separately represented by Mr Tiirikainen who was present to do what he could to ensure that the child’s interests were protected.
Dr Waters was called to give evidence on the voir dire. He confirmed that he had prepared a report for the Childrens Court in December 2003 and said that he had expressed the opinion that it may well have been unwise to have placed the child and his brother with their natural mother. He explained that he had assessed her for the purposes of the relevant proceedings and was very concerned that she had a mental illness and that her abnormal thinking involved the children in “one of the conspiracies which had to do with the Munchausen by proxy”. He said he had been concerned that she was psychotic.
He also explained that the child’s current immediate family unit consisted of his father, the accused, the child’s brother, a stepbrother, and two other children born to the child’s father and stepmother, one in February 2003 and the other born at the end of that year shortly after the date of the alleged offences.
Dr Waters expressed the opinion that if the complainant perceived that his mother wanted him to give evidence of one kind but that doing so might hurt his stepmother and perhaps indirectly his father, he could suffer very substantial stress in giving evidence. He was asked whether that could give rise to a risk of long term harm and explained that much would depend upon what happened after the trial and the extent to which the complainant saw whatever he had said in court as being pivotal in something which had changed the direction of his life or disadvantaged one of the people who were important in his life. He was then asked to suppose that a jury were to accept the complainant’s evidence and as a result find his stepmother guilty and that this proved to have an impact on the family. Dr Waters said that in that event there would be a risk of significant harm to the child. I accepted this evidence.
In the light of the evidence given by Dr Waters, Mr Tiirikainen sought time to consider his position and to consult members of the child’s family. The proceedings were adjourned overnight. On the following morning, he informed me that that he had spoken to the child during the intervening period and considered the evidence of Dr Waters. He then made an objection on the child’s behalf, pursuant to s 18 of the Evidence Act 1995 (Cth) (“the Evidence Act”), to him giving evidence on behalf of the prosecution.
The Crown submitted that the child had no right to make such an objection and insisted that he should be compelled to give evidence.
After the jury was empanelled, I heard further argument on this issue and concluded that the objection could not be sustained and that, if shown to be sufficiently competent, the child would be a compellable witness. Nonetheless, I was satisfied that the Court retained discretion in relation to the exercise of its coercive powers and I informed the Crown that I would not make any order that would require him to be brought into court against his will.
The Crown then indicated that it would seek to tender evidence of prior representations by the child concerning the events in question. After reading the statements tendered on the voir dire and considering the application overnight, I ruled that they were inadmissible and indicated that, even if otherwise admissible, I would have excluded them pursuant to s 137 of the Evidence Act.
Following this ruling the Crown applied for an order that the jury be discharged and the proceedings adjourned pending the provision of my written reasons on “the issue of compellability”. I refused this application.
The Crown prosecutor then sought to present a notice purportedly issued under s 7(6) of the Director of Public Prosecutions Act 1990 (ACT) (“the DPP Act”) declining to proceed further with the prosecution. After hearing submissions from the Director of Public Prosecutions (“the Director”), I ruled that this constituted an abuse of process and refused to permit it to be entered into the record.
The Director then indicated that the Crown would call no evidence in support of either of the charges in the indictment. Thereafter, I ordered that verdicts of acquittal be entered pursuant to s 287 of the Crimes Act 1900 (ACT) (“the Crimes Act”).
I now provide my reasons for my rulings.
The objection by the child
As I have mentioned, in making the objection on the child’s behalf, Mr Tiirikainen relied upon s 18 of the Evidence Act, the relevant portions of which provide as follows:
(1) This section applies only in a criminal proceeding.
(2) A person who, when required to give evidence, is the spouse, de facto spouse, parent or child of a defendant may object to being required:
(a)to give evidence; or
(b)to give evidence of a communication between the person and the defendant;
as a witness for the prosecution.
(3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.
(4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.
(5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.
(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:
(a)there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence; and
(b)the nature and extent of that harm outweighs the desirability of having the evidence given.
(7)Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:
(a) the nature and gravity of the offence for which the defendant is being prosecuted;
(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;
(c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor;
(d) the nature of the relationship between the defendant and the person;
(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.
At face value, these provisions seem to provide a sound legislative basis for the resolution of issues of this kind. They permit courts to balance the public interest in ensuring the admission of relevant evidence and the effective conduct of criminal prosecutions against the public interest in ensuring that witnesses who might otherwise be compelled to give evidence against their own spouse or child do not suffer undue harm, either by the psychological impact of doing so or by the damage that may be caused to relationships within families. There are, no doubt, many cases in which the gravity of the alleged offences and the potential importance of the evidence would readily lead a court to conclude that compulsion was required even if some such harm were to be suffered as a consequence. However, there are other cases in which the balance might be tipped just as strongly in favour of protecting a distraught child or some other emotionally vulnerable witness and yet other cases, in which the competing considerations may be finely balanced. In each such case the Court is ultimately required to make a judgment in the light of the circumstances revealed by the evidence after hearing argument on behalf of both the Crown and the witness.
In the present trial I was informed that the case that the Crown sought to bring against the accused was substantially dependent upon evidence from the child. It had not been suggested that the offences had caused him any permanent or serious injury, though the allegations as to the conduct of the accused were certainly disturbing. Furthermore, the Crown prosecutor had fairly stated that in the event of a guilty verdict he would not be seeking to have the accused convicted. This involved a concession that, in that event, it would be appropriate for the charges to be dismissed pursuant to s 402 of the Crimes Act. This provision enables the Court to discharge an offender, either conditionally or unconditionally, if satisfied that the charge is proved but of the opinion that, having regard to the factors stipulated in the section, including his or her character, antecedents, age, health or mental condition, it is inexpedient to inflict any punishment other than a nominal one, or that it is expedient to release the person on probation. I was, of course, conscious of the public interest in enforcing the criminal law and of the need to ensure that offenders did not escape prosecution for domestic violence merely because other members of the families were reluctant to give evidence against them. However, there was no evidence that the child had been improperly influenced by the accused and in my opinion, the wishes and interests of any potential witness of his age, let alone the alleged victim, should be given due consideration. Furthermore, as I have mentioned, there would have been a risk that the child would suffer very substantial stress if forced to give evidence and at least some risk that he might ultimately suffer significant harm.
In these circumstances I concluded that there were strong grounds for the objection under s 18 if that section applied to the proceedings.
However, the Crown maintained that the objection could not be upheld because s 19 of the Evidence Act expressly provided that s18 had no application to a trial of this kind.
The relevant portion of s 19 provides that:
Section 18 does not apply in proceedings for an offence against or referred to in the following provisions:
(a)an offence that is a domestic violence offence within the meaning of the Domestic Violence Act 1986 of the Australian Capital Territory or an offence under section 27 of that Act.
This provision, no doubt, reflected a well-founded concern that victims of domestic violence and other members of their families might object to giving evidence against the perpetrators due to fear of reprisals or family loyalty. I accept that there is a compelling need to protect people from domestic violence by the due prosecution of offenders and to prevent offenders escaping prosecution by intimidation or persuasion. A person who has violently assaulted his or her children should not escape prosecution and remain free to further mistreat them merely because the other parent is reluctant to give evidence. The legislative policy of denying any right of objection under s 18 to potential witnesses in domestic violence offences of the kind specified is, no doubt, attributable to considerations of this kind.
However, due recognition of the importance of these considerations need not be accompanied by a complete disregard for the risk that curial processes intended to protect spouses or children may themselves inflict further and perhaps quite unwarranted harm. If s 19 still applies to such offences as the Crown maintained, the Court would have no power to uphold an objection by an emotionally vulnerable child even if supported by convincing evidence that to force him or her into the witness box would bring him or her to the brink of suicide. No doubt a Director of Public Prosecutions would not seek to compel such a person to give evidence, but s 19 does not apply only to public prosecutions. Allegations of domestic violence are frequently made in the context of the breakdown of relationships and related disputes over custody of children and it is still possible for private prosecutions to be initiated in this Territory. It would be most unfortunate if criminal proceedings were permitted to be used as a means of forcing children into the witness box because the initiating party knew that such a course would not be permitted in the Family Court of Australia.
Furthermore, a rigid distinction between domestic violence offences and other offences of violence may also produce incongruous results. For example, a woman who slaps her husband following an insulting remark is guilty of a domestic violence offence and the Court would be unable to uphold an objection under s 18 by one of her children called to give evidence against her. On the other hand, if the woman had not slapped her husband but murdered a neighbour, then the Court would be entitled to balance the harm that might be caused to the child against the other factors identified in s 18. It is difficult to imagine that the Commonwealth parliament intended such striking incongruity.
Nonetheless, concern about the apparent inflexibility of a statutory provision does not, of itself, provide any basis for reading down its terms and, if s 19 applied to these proceedings, there was clearly no power to uphold the child’s objection.
The real question was whether s 19 continued to have any application to offences such as those with which the accused had been charged when many provisions of the Domestic Violence Act 1986 (ACT) including those relating to “domestic violence offences” had been repealed and the Act itself had been renamed as the Domestic Violence Agencies Act 1986 (ACT). The Crown contended that the section must now be taken to apply to offences referred to in the Protection Orders Act 2001 (ACT) (“the Protection Orders Act”) by reason of the application of s 10A of the Acts Interpretation Act 1901 (Cth).
That section is in the following terms:
Where an Act contains a reference to a short title or other citation that is or was provided by the law of a State or Territory for the citation of a law of that State or Territory as originally enacted or made, or as amended, then, except so far as the contrary intention appears:
(a)the reference shall be construed as a reference to that law as originally enacted or made and as amended from time to time; and
(b)where that law has been repealed and re-enacted or re-made, with or without modifications, the reference shall be construed as including a reference to the re-enacted or re-made law as originally enacted or made and as amended from time to time and, where, in connection with that reference, particular provisions of the repealed law are referred to, being provisions to which provisions of the re-enacted or re-made law correspond, the reference to those particular provisions shall be construed as including a reference to those corresponding provisions.
The Crown relied upon the recent decision of Higgins CJ in R v Wright [2004] ACTSC 83 in which his Honour upheld a similar contention in answer to an objection by the spouse of a person charged with an offence listed in Schedule 1 to the Protection Orders Act.
Mr Thomas, whom I permitted to be heard on this issue, if only as amicus curiae, contended that this case had been wrongly decided. He argued that the “law” identified by the citation was the enactment itself and that s 10A could not apply to provisions formerly contained in it when the enactment itself had not been repealed. He also argued that the Protection Orders Act, which incorporated corresponding provisions into a much larger and more extensive statute, could not be regarded as a re-enactment or re-making of the law constituted by such provisions. Even if those difficulties could be overcome, the provision in s 9 of the Protection Orders Act, referring to a definition of offences “In this section” for the purpose of explaining the meaning of a further term, could not be said to correspond with a provision referring to an “offence within the meaning of the Domestic Violence Act 1986”. Nor could such an offence be regarded as “a domestic violence offence within the meaning of the … Act”.
These and other interesting and potentially important questions will, no doubt, be considered on the appeal that I was informed was pending in relation to the decision in R v Wright. However, whilst I carefully considered the arguments that had been raised, I could see no reason not to follow his Honour’s decision.
Accordingly, I was unable to uphold the child’s objection.
The discretion not to make coercive orders
On the other hand, it seemed to me that a conclusion that the child was a competent and compellable witness did not require a further conclusion that the Court had no discretion as to whether to apply some or all of the coercive measures available to compel witnesses to give evidence. The Evidence Act does not address issues of this kind. Indeed it is clear from s 8 that the Act has no impact upon the effect of the Supreme Court Act 1933 (ACT) (“the Supreme Court Act”), s 20 of which confers upon the Court “all original and appellate jurisdiction that is necessary to administer justice in the Territory”. Whilst it will normally be appropriate for the Court to take such measures as may be necessary to ensure the attendance of compellable but reluctant witnesses, such remedies are discretionary and the Court may decline to do so when satisfied that the interests of justice require such a course.
In my opinion any conceivable doubt that s 20 should be construed sufficiently widely to permit a judge to refuse to take coercive measures against a young child would now be effectively dispelled by s 11 of the Human Rights Act 2004 (ACT) (“the Human Rights Act”), which provides, inter alia, that “Every child “has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind”. Section 30 provides that “In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred”. This requirement is subject to s 139 of the Legislation Act 2001 (ACT) which requires the adoption of the purposive test of interpretation. Section 30(3) of the Human Rights Act provides that the phrase “working out the meaning of a Territory law” includes confirming or displacing the apparent meaning of the law. I see no reason to doubt that the Court has power to refuse to take coercive measures against a child in order to protect him from the risk of psychological harm to which he is vulnerable by reason of his age and position as a child in a family.
The usual procedure for compelling a reluctant witness to give evidence involves a number of steps. Counsel for the party seeking to adduce the evidence calls on a subpoena that has been validly served on the witness and has commanded his or her attendance. If the witness does not appear, a warrant may be issued for his or her arrest. When due attendance is secured, the witness may be brought into court, by force if necessary, and ordered to enter the witness box. Any refusal to take an oath or make an affirmation, or any failure to answer questions may be dealt with by threats of proceedings for contempt of court and confinement to a cell at least until the witness agrees to comply with the relevant orders.
Whilst I accepted that the child fell within the class of witnesses amenable to compulsion, it would, in my opinion, have been inappropriate to have applied any of these coercive measures to him. A seven year old boy could not be sensibly threatened with contempt proceedings and, save perhaps in the most compelling circumstances, such a child should clearly not be arrested, forced into court or intimidated in order to require him to give evidence when he might suffer significant psychological harm as a consequence of doing so. Children of that age should be protected by the law; not harmed by it.
For these reasons I informed the Crown that I was not prepared to make any order that would require him to be brought into court against his will.
The evidence of prior representations by the child
The Crown then indicated that they would seek to tender evidence of representations that the child had allegedly made to a number of other people. Mr Thomas objected to this course but the Crown submitted that evidence of these representations was admissible pursuant to s 65 of the Evidence Act.
The relevant portions of s 65 are as follows:
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:
(a) made under a duty to make that representation or to make representations of that kind; or
(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c) made in circumstances that make it highly probable that the representation is reliable; or
(d) against the interests of the person who made it at the time it was made.
The Crown submitted that the child should be regarded as “unavailable” to give evidence about the asserted facts and that the previous representations had been made shortly after the asserted facts occurred and in circumstances that made it unlikely that the representations were fabrications and, conversely, made it highly probable that the representations were reliable.
Any issue as to whether a witness should be regarded as “unavailable” must now be considered in the context of the following provision found in the dictionary to the Evidence Act:
4(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
(a)the person is dead; or
(b)the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact; or
(c)it would be unlawful for the person to give evidence about the fact; or
(d)a provision of this Act prohibits the evidence being given; or
(e)all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or
(f)all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
The Crown submitted that it had taken all reasonable steps to compel the child to give the evidence and, in support of this submission, informed me that the child “had been subpoenaed” to give evidence and that the subpoena had been served upon the accused.
Whilst it was suggested that the accused lived at the same address as the child, it was not suggested that she was his guardian and it was clearly inappropriate to expect an accused person to ensure that a Crown witness attended court to give evidence against her. Neither a copy of the subpoena nor an affidavit of service was produced. The accused did concede receiving the subpoena but there was no evidence as to where or when that occurred or as to what happened to the document thereafter. I was not satisfied that the subpoena was validly served. However, I was informed that the child was within the precincts of the Court and I was inclined to accept that the Crown had taken all reasonable steps to compel him to give evidence once he had arrived. Accordingly, I accepted that he was an “unavailable” witness within the definition in the Evidence Act.
Nonetheless, the representations were clearly inadmissible.
Section 67 of the Evidence Act provides that subsections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence. The Crown did not suggest that any such notice had been given. Nor did it make an application under ss (4) for a direction that ss 65(2) should apply notwithstanding the Crown’s failure to have given such notice.
More importantly, I was not satisfied that that the representations had been made in circumstances that made it unlikely that they were fabrications or highly probable that they were reliable.
The child was, of course, only six years old when he was first asked about the incident and the allegations he made against the accused became progressively more dramatic as the succession of interviews unfolded. His teacher said that about 10.00 am she noticed red marks on his neck and asked him what had happened. He said that he had fallen over. She told him that a person did not get marks like that from falling over. He then claimed that the accused had said that if he told anyone it would be worse next time and that he would have to stay in his bedroom. His teacher summoned the Deputy Principal who took the complainant into her office. He told her that his step-mother had grabbed him around the neck because he couldn’t find his school bag and said that from now on he wouldn’t be allowed to watch any more morning television.
The Family Services Branch of the Department of Education Youth and Family Services was duly notified and at about 2.00 pm the complainant was interviewed by Ms Bunder and Mr Lang. The complainant told them that he had been grabbed and pointed to his throat. When asked to show Ms Bunder how he had been grabbed he put his hand around her throat in a pinching action.
At 7.30 pm that evening two medical practitioners at the Child at Risk Assessment Unit obtained a history from him which included allegations that the accused had pinched him on the neck and left hand, choked him, pushed him against walls and onto the floor and grabbed his hands and thrown them against a wall.
During the course of the following morning he was interviewed by police officers and told them that the accused had pinched him on the neck, “squashed” him, pushed him down, kicked him, choked him, stood on him, banged him into a wall and hurt his neck. He said that she had also hit him with what he called “karate chops” and added, “all over me actually”. Despite this treatment however, he said that he had not cried.
It is, of course, possible for successive accounts of an incident to become progressively more expansive merely because the process causes further details to spring to mind. However, it is difficult to be confident that at least some aspects of the account that the child gave to the police did not reflect a blend of imagination and reconstruction rather than a factual account of what had occurred.
There were some other aspects of the complainant’s statement to the police which suggested some measure of fantasy. For example, he had said that next year he had expected to be at a different school where “when you come into a new year you get lollipops, you get six”. He was, of course, only six years of age when subjected to these interviews and due allowance should obviously be made for the likelihood that small boys may fantasise about new schools and/or lollipops but may be entirely reliable when recounting more serious matters. However, when asked by the police whether he knew what the difference was between the truth and a lie he replied “no”. It is true that the child was able to say that it would have been a lie if the interviewing officer had said that he had come to see the police in a big red fire engine and to explain the reason that this would have been a lie. However, his responses to that single example of a glaringly obvious lie told by someone else was not wholly reassuring and the extent of his understanding about this issue was not pursued.
Furthermore, when the police asked his teacher whether he was “one of those kids” that make up stories she replied “Um, there have been some times when he has said things that I’ve thought, well I’m not sure if that would be, um, true . . .”.
I should perhaps mention that during the course of the voir dire, Dr Waters agreed that the child’s complaint “looked believable”. However, when asked about the extent to which he had added to his accounts of the incident, Dr Waters said that it was difficult to interpret what that meant. He explained that:
…it can simply be that when you’ve been asked again about it, you think you remember other things about it or questions are put to you in a different way, or it can cut the other way. I mean, it can be sort of just embellishment that they pull out of thin air too, so it’s hard to be sure. That’s why one look [sic] at the central things to see, because I mean, if the basic dynamics of what went on, you know, she hit me then I did that, then I did that, then I did that, more or less that sort of – that part stays the same but you start to get a little bit of added detail then you think that this is more likely that it has to do with – it’s an artefact of repetition if you like. But if they start to add new stages to things, new chapters, if I could put it that way, then depending on how they’ve added, you know, you may be quite concerned with whether you’re getting a truthful or a fanciful account.
Dr Waters said that he thought that the “central thing” had stayed “pretty stable” in the child’s accounts but that he had used enthusiastic and dramatic language in describing “being bashed into the ground and that kind of thing” during the course of his police interview. Dr Waters said that he was not sure he could draw any conclusions from that and, in re-examination, agreed that he had been unable to form any final view as to whether the events the child had described had occurred. He said that “if you’re asking me would I rest it entirely on this, my answer is particularly no in some of the other circumstances that I would want to know about – about other things, other forms of corroboration . . ..”
The child clearly wanted to be with his mother rather than with his father and stepmother. He told Ms Bunder that “Mum says I should stay in Sydney, I think so to, but Dad says we have to stay in Canberra and the Judge said so too”. He also told the police that before he came to Canberra he had been in America and added “And that’s a good thing because I wasn’t near [the accused]. My mum’s hoping that I could go back to America so we won’t be able to see [the accused] again”. He told his teacher that he was going to go and live with his real mum and that he had been counting down the days when it would happen. Sadly, it appears that his natural mother’s mental illness made it inappropriate for him to be placed in her care. Yet, in the absence of any evidence to the contrary, the possibility that he may have been influenced by his desire to live with her could not be discounted. In fact, it seemed likely that some of his statements may have been attributable to feelings of loyalty and affection for her and a corresponding resentment that she had been substantially displaced in his life by his stepmother. For example, at the end of the interview he told the police that the people who had come to the school had told him that the accused would be gone by the time he got back. The statements of Ms Dundas and Mr Lang contain no hint that either of them would have said anything to that effect and it seems most unlikely that either would have done so.
Having considered the various statements made by the child and the circumstances in which they were made, I was unable to be satisfied that the representations satisfied the criteria in s 65 upon which the Crown relied.
Furthermore, even if the representations had otherwise been admissible, s 137 of the Evidence Act would have required their exclusion. That section provides that “In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant”.
It is, of course, vitally important that counsel for an accused person have an opportunity of fairly testing the evidence adduced against his or her client. That is usually done by cross-examination, a process which Colman J of the Supreme Court of South Africa has described as 'perhaps the most useful of all the instruments used in the administration of justice. See Colman QC, G., Cross Examination; A Practical Handbook, Juta & Co. Ltd., Cape Town, 1970, at 1. Lord Hanworth M.R. has also affirmed its value in testing the veracity of a witness and the accuracy of his or her account. See Mechanical & General Inventions Co. Ltd and Lehwess v Austin and Austin Motor Co. (1935) A.C. 346 at 359. If the opportunity to cross-examine a significant witness is denied then the accused may well suffer real prejudice. When the prosecution is essentially dependent upon the allegations made by a single person then the admission of hearsay accounts of the allegations made by that person without any opportunity for cross-examination as to their truth and accuracy may result in substantial unfairness.
Every case must, of course, be considered on its merits but in this trial, I was left in no doubt that the probative value of the hearsay evidence upon which the Crown sought to rely would have been outweighed by the danger of unfair prejudice to the accused.
For these reasons, I upheld the objection.
The application to discharge the jury
In support of its application for the jury to be discharged so that my rulings could be tested, the Crown submitted that I had power to do so and observed that such a course had been adopted by Higgins CJ in R v Wright. In that case, however, his Honour had discharged the jury because there had not been time to resolve the issues that had been raised without unduly delaying the conduct of the trial. In the present trial the application was made only after I had already announced my rulings.
The Crown also protested that reasons had not been given for the rulings. I indicated that I would provide them as soon as possible but did not accept that my decision to reserve them offered any sensible reason for discharging the jury and effectively aborting the trial.
Accordingly, I refused the application.
The attempt to tender a nolle prosequi
The attempt to enter a notice purportedly issued under s 7(6) of the DPP Act to decline to proceed further and bring the prosecution to an end was clearly made with the intention of aborting the trial so that otherwise inevitable verdicts of acquittal could be avoided and the Crown would have the opportunity to consider the possibility of obtaining leave to test any of my rulings on appeal. I was concerned at the adoption of this approach, which I understood to be without precedent in this Territory and after some debate asked the Crown Prosecutor to arrange for the Director to appear personally to deal with the issue.
During the ensuing exchange with the Director he confirmed that he had issued the nolle prosequi because he wanted to have the opportunity to consider testing my rulings on appeal. He maintained that such a notice, commonly referred to as a nolle prosequi could legitimately be used for such a purpose and cited several decisions of courts in other jurisdictions in support of his contention that he was entitled to do so.
It quickly became apparent that he had misunderstood some of the rulings. In particular, whilst indicating that he would be grateful to be disabused of the impression, he expressed concern that I might have suggested that no seven year old boy could give evidence and later said that I had held that the child was not competent to give evidence. I had not, of course, made either of these rulings. Whilst ultimately reassured on these issues, the Director nonetheless maintained that he was entitled to enter the nolle prosequi to test my ruling concerning the admissibility of the prior representations made by the child.
The procedure for terminating prosecutions by means of a nolle prosequi is a very old one. As Debelle J observed in Question of Law Reserved on Acquittal Case (No 3 of 1995) (1996) 66 SASR 450, its use in proceedings on an information was well established in the 17th century and there had been some instances of its use even earlier. The origin of the procedure is not clear, though it has been suggested that “an information” was akin to an action instituted by the Sovereign acting through the Attorney-General, and that the entry of a nolle prosequi acted in the same way as the discontinuance of a civil action. Debelle J suggested that there was a logical basis for the procedure in that it was reasonable, at least in principle, that proceedings instituted in the name of the Crown should be subject to termination at the will of the Crown. The procedure was adopted in the Australian colonies and now exists in all Australian states and territories. In some jurisdictions the procedure is now regulated by statute and may be exercised by the Director of Public Prosecutions or a delegate, as well as by the Attorney-General.
In this Territory the relevant provision is to be found in s 7(6) of the DPP Act which is in the following terms:
Where a person is under commitment or has been indicted for an indictable offence, the Attorney-General or the Director may decline to proceed further in the prosecution of the offence and may cause the prosecution to be brought to an end.
A nolle prosequi can be entered at any time after the indictment or information has been signed and before verdict. Once entered, the Court can no longer proceed with the trial of the charges on the indictment to which the nolle prosequi relates. However, the presentation of a nolle prosequi does not give rise to any implied representation that the accused will not be charged again with the same offence or offences and it neither creates a bar to subsequent prosecution nor provides a basis for a plea of autrefoi acquit: Broome v Chenoweth (1946) 73 CLR 583; Poole v The Queen (1961) AC 223. Hence, it is possible for the Attorney-General or Director of Public Prosecutions to proceed ex officio on a fresh information.
In Question of Law Reserved on Acquittal, Debelle J cited a number of comments published by Professor Edwards in 1984 in which he referred to the recent English policy of confining the exercise of the power to enter a nolle prosequi to cases where it had been found that the accused was suffering from ill health and was unlikely ever to be fit to stand trial. Professor Edwards added:
No longer is it thought justifiable, at least in English law, to dispose of technically imperfect proceedings instituted by the Crown by resort to the nolle prosequi procedure. The advantages that formerly accrued to the prosecution in this fashion were theoretically unlimited, permitting the Crown to meet procedural objections with the utmost equanimity. A sense of injustice was inevitably associated with the use of the Crown’s prerogative powers to these ends and thus the policies of the Crown’s prosecutors have shifted towards either seeking the leave of the court to the withdrawal of the charges or in offering no evidence and thereby ensuring a directed verdict of acquittal.
Debelle J observed that it appeared that the present practice in England accorded with Professor Edwards’ assessment but that decisions in Australian courts indicated that the procedure had been employed in a wider variety of circumstances. However, even in Australia it is usually used to end a prosecution when it appears that the public interest does not require that such a course be pursued. That conclusion is commonly based upon an assessment that the available evidence will be insufficient to support the charges or other considerations related to the gravity and/or the character and state of health of the accused.
Courts in England have not questioned the exercise of the power to enter a nolle prosequi, at least since 1843, and this practice has been followed in Australia: Barton v The Queen (1980) 147 CLR 75; Maxwell v The Queen (1996) 135 ALR 1. However, whilst at common law, courts have no jurisdiction to review the decision of a Director of Public Prosecutions to issue a nolle prosequi, it has long been settled that superior courts have an inherent jurisdiction to prevent abuse of their own processes. That jurisdiction may be exercised in civil or criminal proceedings and, at least in the case of criminal proceedings the Court’s power is not limited by traditional motions of abuse of process or to defined or closed categories of cases: Jago v The District Court of New South Wales (1989) 168 CLR 23 per Mason CJ at 28 and Gaudron J at 74. The power may be exercised as and when the administration of justice requires.
It is clear that the jurisdiction will not be exercised lightly and that any attempt to invoke it will require a court to weigh important public policy considerations. In Williams v Spautz (1992) 174 CLR 509 Mason CJ, Dawson, Toohey and McHugh JJ said at 519-520:
It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it . . .
These factors have considerable force. There is a risk that the exercise of the jurisdiction to grant a stay may encourage some defendants to seek a stay on flimsy grounds for tactical reasons. But that risk and the other policy considerations already mentioned are not so substantial as to outweigh countervailing policy considerations and deter the courts from exercising the jurisdiction in appropriate circumstances.
As Lord Scarman said in Reg v Sang [1980] AC 402 at 455, every court is “in duty bound to protect itself” against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J referred to them in Moevao v Department of Labour [1980] 1 NZLR 464 at 481 in a passage which Mason CJ quoted in Jago (1989) 168 CLR at 30. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.
In the subsequent case of Walton v Gardiner (1993) 177 CLR 378 Mason CJ, Deane and Dawson JJ said, at 395-396, that the factors which must be taken into account include the requirement of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
As Macrossan CJ and Thomas J pointed out in R v Jell, ex parte Attorney-General (1991) 1 Qd R 48 it is possible to identify some instances of an abuse of process justifying the Courts in refusing to permit the entry of a nolle prosequi. The instances which their Honours noted were:
(i)where the jury, by request for redirection, may have so signalled their likely verdict that an “unscrupulous prosecutor” might seek to avoid it by entering a nolle prosequi even at that late stage;
(ii)where the case has gone badly for the prosecution and it is conceivable that it might turn out better in a subsequent trial;
(iii)where the prosecutor has taken a risk by proceeding without a witness who was then not available and whose evidence it was hoped would be covered by some other witness who did not come up to proof, so that the prosecutor feels that the accused will unfairly escape conviction; and
(iv)where the Crown case does not disclose the commission of the offence alleged in the indictment.
In Question of Law Reserved on Acquittal, Debelle J said that these were all obvious instances of abuse of process and expressed agreement with the comment of Macrossan CJ in R v Jell, that any list obviously could not be exhaustive. Debelle J added, however, that it did not necessarily follow, that the appropriate time for the Court to intervene was when the Crown attempted to enter the nolle prosequi because it was often possible to do so at a later stage, by staying a fresh indictment. It was not desirable that there should be any hard and fast rule. His Honour concluded that the Court should have jurisdiction to refuse to permit the entry of a nolle prosequi and suggested that the power would be exercised to prevent an abuse of process, unfairness or injustice “but only in rare or exceptional circumstances”.
Nyland J expressed agreement with Debelle J’s reasons for judgment. Mullighan J also expressed substantial agreement but provided a short supplementary judgment in which he expressed the opinion that it was not appropriate that the Court be protected from an abuse of process only by the procedure of staying the trial of a subsequent information. His Honour said that once there is an abuse of process, the Court should intervene.
I do not understand Debelle and Nyland JJ to have been suggesting that abuses of process should be prevented only in rare or exceptional circumstances but, rather, that it is appropriate to refuse to permit the entry of a nolle prosequi only in rare or exceptional circumstances. Conversely, I do not understand Mullighan J to have been suggesting that such a remedy will always be appropriate. In my opinion, the decisive question is whether the entry of a nolle prosequi would itself constitute an abuse of process requiring judicial intervention to prevent injustice or whether it would only be the presentation of a fresh indictment that would give rise to an abuse of process requiring judicial intervention.
In the present trial I rejected the contentions of the Director for a number of reasons.
First, whilst s 7(6) of the DPP Act authorises the Director to decline to proceed further and to bring the prosecution to an end, it does not authorise him to take such steps contingently or to equip prosecutors with a signed notice which may be tendered or not tendered, either at their discretion or in the event of adverse rulings. The phrase “decline to proceed further” should in my view be taken literally. It means that the Director elects to take no further step in the prosecution. After making that decision he may need to tender or file the notice to bring the proceedings to an end but that does not mean that the power to decline to proceed further with the prosecution should be construed as a power to issue a document in escrow but proceed further with the prosecution unless and until some contention advanced on his behalf is rejected.
This construction of the section is, in my opinion, now confirmed by s 30(1) of the Human Rights Act which, as I have mentioned, generally requires the Court to prefer an interpretation of a Territory law that is consistent with human rights. Section 21 of the Human Rights Act provides that “Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing”. Furthermore, one of the “minimum guarantees” provided by s 22 of that Act, to anyone charged with a criminal offence, is the right to be tried without unreasonable delay.
In the present case, notwithstanding the fact that the notice had already been signed and brought to court, the Crown did not produce it or even inform me of its existence until I had given a ruling on the admissibility of the statements made by the child and dismissed the Crown’s application to have the jury discharged. Accordingly, it seems inescapable that at the time the Director signed the document stating that he declined to proceed further with the prosecution, he had not, in fact, declined to do so. On the contrary, he still intended to proceed with the prosecution, at least to the extent of having the Crown prosecutor make a further application in the trial. Despite its terms, the document reflected only an intention to so decline if the ruling concerning the admissibility of the child’s statements proved unfavourable to the Crown and the subsequent application to have the jury discharged was rejected.
Since, in my opinion, s 7(6) did not authorise such a course, I was unable to accept that the power conferred by that subsection had been validly exercised.
Secondly, the stated purpose of the nolle prosequi was almost certainly unachievable. Whilst it is true that the use of a nolle prosequi to enable the Crown to challenge unfavourable rulings was supported by the Queensland Court of Criminal Appeal in the cases of R v Jell and R vFerguson,ex parte Attorney-General [1991] 1 Qd R 35, those cases were decided in 1991 and, as Debelle J pointed out in Question of Law Reserved on Acquittal, an amendment to s 669A(2) of the Criminal Code Act 1989 (Qld) (“the Criminal Code”) in 1989 had permitted the Crown to refer rulings made during the course of a trial to the Court of Criminal Appeal following the entry of a nolle prosequi. It is true that a similar approach was taken in Doylev R (1988) 2 Qd R 434 which was decided prior to the amendment to s 669A but, whilst a nolle prosequi had been entered in respect of most of the counts on the indictment in that case, the accused had been acquitted on two counts. Debelle J said that in South Australia a question of law could only be referred by the Attorney-General or Director of Public Prosecutions to the Court of Criminal Appeal after an acquittal and that there did not, therefore, appear to be the same capacity for the prosecution to enter a nolle prosequi for the purpose of challenging a decision made during a trial. Similar observations may be made about the law in this Territory. Section 37S of the Supreme Court Act permits the Attorney-General or the Director of Public Prosecutions to appeal against a question of law after an acquittal but not after the entry of a nolle prosequi and any decision upholding such a “reference appeal” does not have the effect of setting aside the acquittal or otherwise exposing the accused to further prosecution in relation to the same charges. Accordingly, in this jurisdiction the entry of a nolle prosequi would not enable a prosecutor to challenge rulings of the trial judge on appeal.
The Director argued that it would have been possible to apply for leave to appeal against the rulings in the same way that litigants may apply for leave to appeal against other interlocutory decisions. However, it was difficult to see any basis upon which such an application could have been supported. The entry of the nolle prosequi would have brought the entire prosecution to an end and there would have been no principal proceedings pending in the Court. In the absence of any statutory provision expressly authorising such a course, it is difficult to imagine any appellate court granting leave for a party to appeal against an interlocutory decision made in the course of proceedings which that party had subsequently discontinued or otherwise brought to an end. Appellate courts do not normally give advisory opinions of no relevance to any pending proceedings. Furthermore, there could be no certainty that the same issues would arise on a retrial at some unknown time in the future or, if raised, that they would be approached in the same manner and with the same evidence.
In the absence of any express statutory authority, such an application could also be seen as a further step in the same prosecution and hence would be inconsistent with the exercise of the power conferred by s 7(6).
Furthermore, the use of a nolle prosequi followed by such an application would effectively circumvent the provision in s 37S of the Supreme Court Act, preventing any decision on a reference appeal from again exposing the accused to conviction for the same offences.
In any event the Director was unable to say whether he would apply for leave to test any of the rulings. He was obliged to contend that he was entitled to enter a nolle prosequi for the purpose of keeping his options open until I had given reasons and he had had the opportunity of reviewing the transcript and considering his position.
Thirdly, in my opinion, the entry of a nolle prosequi in these circumstances clearly constituted an abuse of process. The accused, like any other person facing criminal charges in this country, was entitled to verdicts of acquittal if the Crown failed to prove her guilt to the requisite standard at her trial. Notwithstanding that entitlement, it remained open to the Director to enter a nolle prosequi if of the view that the charges should not be maintained. However, it was not appropriate for this procedure to be used as a means of aborting the trial because it had gone badly for the prosecution and it hoped to do better in a subsequent trial, even if those hopes were dependent upon a vague hope of ultimately obtaining favourable rulings on appeal.
As I said during the course of argument, that would be as unfair as allowing a sporting team to cancel a match because it was losing and hoped to do better next time. I am conscious of John Stuart Mill’s lamentation that “even instructed Englishmen speak and act as if they regarded a trial as a sort of game, partly of chance, partly of skill, in which the proper end to be aimed at is, not that the truth may be discovered, but that both parties may have fair play.” (quoted by Jeremy Bentham, Rationale of Judicial Evidence, Specially applied to English Practice, Vol 5, London, Hunt & Clark, 1827 at 318). The public interest in the effective administration of criminal justice should never be overlooked. However, fairness is an indispensable requirement of the criminal justice system in any civilised society and the game analogy is widely used in discussion of such issues (see, for example, Firak, N.L., ‘Ethical Fictions as Ethical Foundations: Justifying Professional Ethics’ (1986) 24 Osgoode Hall L. J. 35, at 56, Curtis, C. P., Law Large as Life, Simon & Schuster, New York, 1959, at 1181 & Cardoza, B. N., ‘Faith and a Doubting World’, Selected Writings of Benjamin Nathan Cardoza, ed by Hall, M. E., Matthew Bender, New York, 1947, 99, at 101). The analogy may perhaps be of value in pointing to the minimum standard of fairness that a person accused of a criminal offence and at risk of being sent to prison is entitled to expect. It would plainly be unfair for one party to be permitted to come to court intending to continue with the trial only if rulings were made in its favour and to use a pre-signed document to stop the proceedings if they were not.
It is true that in R v Ferguson at 40, Connolly J expressed the opinion that “the mere fact that the Crown avails itself of the right to enter a nolle prosequi for the purpose of obtaining the opinion of the Court of Criminal Appeal does not, without more, amount to abuse of process”. However, this comment must be understood in the context of s 669A of the Criminal Code that effectively granted such a right. Furthermore, his Honour did not suggest that a nolle prosequi could be executed and held in escrow pending rulings not then made. Nor did his Honour endorse the use of such a procedure to terminate a trial merely to permit the Director of Public Prosecutions to ascertain the nature of rulings that had been given in open court, await written reasons and consider his or her position.
In this Territory, the right to have criminal charges decided by a court or tribunal after a fair and public hearing is now expressly recognised in s 21 of the Human Rights Act and the right recognised by s 22 to be tried without unreasonable delay plainly extends to a right to have the charges determined at the trial. In my opinion, those rights would have been unjustifiably infringed by the course proposed.
I accepted that the Director made his decision conscientiously and in accordance with his perception of the public interest. However, for the reasons I have given, I concluded that it was necessary for the Court to intervene in order to prevent the abuse of process threatened by the tender of the nolle prosequi and uphold the right of the
accused to have a decision made at the end of the trial, rather than leaving her to make an application for a stay of proceedings at some stage in the future should the Director seek to file a further indictment in respect of the same charges.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.
Associate:
Date: 27 October 2004
Counsel for the Crown: Mr J Lundy, Mr R Refshauge SC
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Mr R Thomas
Solicitor for the accused: Garry Bates & Co
Counsel for the child: Mr M Tiirikainen
Date of hearing: 12-14 October 2004
Date of judgment: 27 October 2004
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