RPM v The Queen
[2004] WASCA 174
•13 AUGUST 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: "RPM" -v- THE QUEEN [2004] WASCA 174
CORAM: MALCOLM CJ
WHEELER J
MCKECHNIE J
HEARD: 10 FEBRUARY 2004
DELIVERED : 23 JULY 2004
PUBLISHED : 13 AUGUST 2004
FILE NO/S: CCA 173 of 2003
CCA 174 of 2003
BETWEEN: "RPM"
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FENBURY DCJ
File Number : BRO 25 of 2001
Catchwords:
Criminal law and procedure - Sexual offences - Evidence - Trial of alleged sex offences on the complainants one of whom deceased - Whether evidence of silicone oil in anus of deceased admissible at trial - Corroboration - Admissibility of statements by complainant SR pursuant to s 106H of the Evidence Act 1904 - Warning that statement not to be on oath or that it would be dangerous to convict or complainant's evidence not required
Criminal law and procedure - Written statement of complainant pursuant to s 106H Evidence Act 1904 - Whether any warning required
Legislation:
Criminal Code (WA), s 320(2)
Evidence Act 1906 (WA), s 106C, s 106D, s 106H
Result:
Appeal against conviction allowed
New trial ordered
Category: A
Representation:
Counsel:
Appellant: Ms B J Lonsdale
Respondent: Mr P J Urquhart
Solicitors:
Appellant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Butera v DPP (Vic) (1987) 164 CLR 180
Carr v The Queen (1988) 165 CLR 314
Chamberlain v The Queen [No 2] (1983) 153 CLR 521
Driscoll v The Queen (1977) 137 CLR 517
Jones v The Queen (1997) 191 CLR 439
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
Markby v The Queen (1978) 140 CLR 108
Maxwell v Murphy (1956) 96 CLR 261
Morris v The Queen (1987) 163 CLR 454
Murphy v The Queen (1988) 167 CLR 94
Pfennig v The Queen (1994) 182 CLR 461
Plomp v The Queen (1963) 110 CLR 234
R v Baskerville (1916) 2 KB 658
R v Corkin (1989) 50 SASR 580
R v Freeman (1980) VR 1
R v Knigge (2003) 6 VR 181
R v Lillyman [1896] 2 QB 167
R v NRC [1999] 3 VR 537
R v Robinson [1994] 3 All ER 346
R v Turner [1975] QB 834
Reference of a Question of Law pursuant to the Criminal Code, s 693A (Reference No 1 of 1999) [1999] WASCA 53; (1999) 106 A Crim R 408
Sparks v The Queen [1964] AC 964
Case(s) also cited:
Azzopardi v The Queen (2001) 205 CLR 50
Bromley v The Queen (1986) 161 CLR 315
Doggett v The Queen (2001) 208 CLR 343
KRM v The Queen (2001) 206 CLR 221
R v Miletic [1997] 1 VR 593
MALCOLM CJ: This is an appeal against conviction. There is also an application for leave to appeal against sentence. On 29 July 2003 the appellant was convicted after a trial over two days of six counts of sexual penetration of two children under the age of 13 years. The complainants were brothers and the appellant's nephews, one of whom had committed suicide prior to a complaint being made. The offences were alleged to have taken place between 1 January 1997 and 9 July 1998. The maximum sentence of imprisonment for each offence under s 320(2) of the Criminal Code was 20 years. On 4 August 2003 the appellant was sentenced to a total sentence of imprisonment for 18 years
The prosecution case relied substantially on a statement made to the police by the surviving complainant, SR, which was admitted into evidence pursuant to s 106H of the Evidence Act 1906 (WA), and implicated the appellant in respect of both the commission of offences against him and also against his deceased brother, TR.
SR was interviewed by a female police constable at Kununurra police station in January 2000. His mother was present at the interview. The notes of that interview were converted into a written statement by SR which was signed by him and dated 10 February 2000.
The constable who had taken the statement was subsequently advised by a detective sergeant that she should take steps to have SR record his evidence on video. An attempt was then made to record SR's evidence on 4 April 2000. As Wheeler J has pointed out, when cross‑examined on the voir dire, the constable was somewhat confused about the purpose of the video. The result was that there were leading questions asked and some prompting by SR's mother. As a consequence, at the trial it was accepted by and conceded that the April 2000 video should not be admitted into evidence. The procedure adopted was that the S 106H statement was read to the jury and the video‑recordings of his examination‑in‑chief and cross‑examination were then played to the jury.
On 24 October 2001 an attempt was made to have the complainant, SR's, evidence pre‑recorded on video in the presence of L A Jackson DCJ. During the course of the examination‑in‑chief he became unresponsive to questions regarding the allegations the subject of the indictment. The attempt to pre‑record SR's evidence was then abandoned. On 17 December 2001 Murray J granted an application on the part of the prosecution that an edited version of the statement of SR, dated 10 February 2000, be read into evidence pursuant to s 106H of the Evidence Act. SR was subsequently cross‑examined by the appellant's counsel at a further video pre‑recording of his evidence on 19 June 2002.
The evidence of SR of sexual abuse perpetrated by the appellant upon himself and his older brother, TR, was not uncorroborated. There was medical evidence that both of the boys had anal injuries consistent with the penetration of a blunt object on more than one occasion. There was also forensic evidence which was admitted at the trial of the finding of silicone oil in the anus of the deceased complainant during a post‑mortem examination of TR in July 1998.
The s 106H statement of SR, which was read to the jury, referred to the appellant wearing a condom when he penetrated the anus of the deceased complainant. It was conceded by the prosecution that the relevant incident, the subject of count 4, would not have been on an occasion shortly before the complainant died.
In his video record of interview with police on 4 September 2000, the appellant denied ever using condoms. A subsequent search of his house, however, located a packet of condoms, which contained the same silicone oil found in the deceased complainant's anus.
Unlike most cases involving allegations of child sexual abuse, the appellant did not take issue with the fact that the two complainants had been sexually penetrated. The appellant's case at the trial was that another person was responsible for the sexual abuse of both the complainants, namely, their grandfather. The principal issue at the trial was one of the identity of the offender rather than a contention that the incidents alleged never occurred.
The appeal against conviction was originally on seven grounds. Grounds 2, 3 and 4 were abandoned at the hearing on 10 February 2004.
The offences were alleged to have been committed by the appellant on both complainants between 1 July 1997 and 9 July 1998. The two complainants were aged five and seven respectively at the time. TR died on 1 July 1998 and the appellant was alleged to have committed two further offences on SR between 1 July 1997 and 31 December 1999.
As previously indicated, SR made statements to the police implicating the appellant in the offences concerning him and TR. SR spoke to the female police officer on three occasions in January 2000, during which she took notes. The notes were converted into a handwritten statement dated 10 February 2000. On 4 April 2000 SR was interviewed by police on video, but the video then made was not tendered into evidence by the prosecution at the trial.
On 24 October 2001, in the District Court before his Honour Judge L A Jackson, SR gave evidence at the trial by way of a video‑link from a remote room. He denied that any incident had occurred which could have formed the subject of any of the counts on the indictment. The prosecution then applied to adduce SR's statement dated 10 February 2000 in evidence pursuant to s 106H and also applied for an adjournment to enable a voir dire to be held to determine whether that application should be granted.
On 17 December 2001, a voir dire was held before Murray J, sitting as a Commissioner of the District Court, at which the evidence‑in‑chief of the complainant was taken and recorded on video. The Crown also applied for SR's statement dated 10 February 2000 to be read into evidence pursuant to s 106H of the Evidence Act. This application was granted, but the learned Judge did not make any comment or observation on the question whether the trial Judge should ultimately give a warning to the jury concerning the statement. SR was cross‑examined by counsel for the appellant on 19 June 2002 and those proceedings were also recorded on video for use at the trial.
At a pre‑trial directions hearing on 24 July 2003, before Blaxell DCJ, counsel for the appellant objected, among other things, to the Crown leading evidence that silicone oil had been found in the anus of TR at his post‑mortem. His Honour ruled that the evidence was admissible on the grounds that it was "highly probative" and tended to "bolster SR's credibility". His Honour's reasons were as follows:
"My ruling is [sic as] to this issue of whether or not the evidence of the presence of silicone oil in [TR's] anus post-mortem, my ruling is that that evidence is admissible. It is highly probative evidence. It is evidence which, if accepted, would inevitably lead the jury to conclude that there had been an act of anal penetration of the deceased complainant within a few days of his death. The jury could not conclude that that act of anal penetration was the offence alleged in count 4 of the indictment.
However, the evidence is nevertheless highly probative because it bolsters the credibility of the complainant [SR] when he states at page 20 of his statement that he saw 'rude things' happen to [TR] while he lived at Nan's house. Obviously rude things other than the offences alleged in the indictment and that evidence therefore bolsters his credibility when he says that there were acts of sexual abuse and for that reason it is relevant to his credibility when he says that the offence the subject of count 4 did indeed occur. So for those reasons I rule that the evidence as to the presence of silicone oil is admissible."
The trial commenced before his Honour Judge Fenbury and a jury on 28 July 2003. The prosecution was permitted to read into evidence the statement obtained under s 106H, which had been edited to exclude inadmissible material, and the video recordings of SR's evidence‑in‑chief and cross‑examination were also put into evidence.
In the s 106H statement, SR said that at the beginning of 1997 "maybe February", he and TR went to stay at his grandparents' house in Broome. They stayed there until about July of 1998. He said that he could remember one time when he and TR were playing outside, the appellant "… showed us his balls. His balls means his dick and his balls. I just say balls, but it means his dick too".
SR then described how the appellant put his penis and his balls into his mouth and made SR suck them. He said, "They were soft and then it went hard like a stick. He pushed his balls in my mouth and kept pushing and pulling them in my mouth". The incident so described was the subject of count 1 on the indictment.
SR then said that "he did it to [TR] too. I saw him do it to [TR] … It was the same he did to me". That incident was the subject of count 2.
As to count 3, SR said that after the incident with TR, the appellant "… puts his balls in my arse". He went on to say:
"He pulled my pants down and he tried to put his balls in my arse but it pained a lot and I told him to stop."
That incident was the subject of count 3. SR described the final incident on that day, which was the subject of count 4 as follows:
"He stopped doing that to me and then he put that plastic thing on his balls and then he did it to [TR]. He munya [TR] in the arse. I could see him put his balls in [TR's] arse and it hurt him."
After July 1997, SR and TR went to stay with their mother in Derby. They returned to their grandparents' house in Broome in January 1998. SR was then aged five. He described how on one occasion in the daytime when he was at the house the appellant:
"One time in the daytime [the appellant] made me suck his balls in the lounge room – when I started to suck his balls they were soft and after a while they went hard. He kept pushing his balls in my mouth and when he started to make noises he pulled out and put it on my face. Some milky stuff went in my mouth and on my face and neck. It was warm and yucky. I spit it out and it made me feel sick. I wiped that stuff off. It was yucky. Northing else happened that day."
As to count 6 on the indictment, SR's evidence was that:
"After [TR] died, not so many rude things happened to me. Sometimes rude things still happened but I don't remember them too much. I remember the last time that a rude thing happened to me. That was after [TR] died and it was in 1999. It was in the daytime, but in the afternoon after school … I remember I was in the lounge room and [the appellant] was there too, so was nan and grandpa. [The appellant] pulled down my shorts. They were orange. He also pulled down my underpants. They had squares and spots on them. I was wearing a Bob Marley T‑shirt and he took that off too. Then he started to be rude to me. [The appellant] had a mango stick. It was about this long.
[He indicated, according to the statement, about 30 centimetres.]
He kept poking the stick at my balls and my arse. He poked the stick right deep inside my arse. It got stuck in there. It hurt a lot, like a hundred; it hurt a lot. I cried a bit. [The appellant] did that for a long time and he had no clothes on and when he took that stick out of my arse it was bleeding and that made me cry more."
SR went on to say in the statement that not long after the incident the subject of count 6 he started to live with his mother again at the house of an aunt. While he was there he said:
"… nothing rude happened to me again and the I told my mum that some rude things happened to me. We talked about the rude things and then we told the lady at the Family and Children's Services and then came and told the police lady in Kununurra.
I know what the truth means. It means you have to tell what happened and not tell any stories. I know what a lie is and it's making things up. I know that it is bad to make up stories. I didn't make this up. I told the true story."
The statement was signed by SR and witnessed by Constable Rayner who gave evidence of the taking of the statement at the trial.
Following the completion of the evidence and prior to the commencement of the summing up by the learned trial Judge on 28 July 2003, defence counsel invited the trial Judge to give a warning to the jury to the effect that the out‑of‑court unsworn statement of SR put in evidence under s 106H of the Evidence Act should not carry the same weight as his sworn testimony. That invitation was declined by the learned Judge.
Counsel for the appellant indicated to the learned trial Judge that, in his closing address to the jury:
"I would like to make the point to the jury that there's a difference in the weight to be given to the evidence - the 106H statement and the evidence on oath because one is sworn in court and one isn't and I would be asking your Honour to direct along those lines as well. I haven't formulated it precisely yet but certainly I would be asking your Honour to tell them that less weight is to be attached to the 106H statement than the evidence n [sic on] oath."
The Judge then referred to s 106C and s 106D of the Evidence Act 1906 (WA) which provide that:
"106CChildren under 12 may give unsworn evidence
A child under the age of 12 years who is not competent to give evidence under section 106B may give evidence without taking any oath or making a solemn affirmation if the Court or person acting judicially forms the opinion, before the evidence is given, that the child is able to give an intelligible account of events which he or she has observed or experienced.
106DCorroboration warning on evidence of child not to be given
In any proceeding on indictment for an offence in which evidence is given by a child, the judge is not to warn the jury, or suggest to the jury in any way, that it is unsafe to convict on the uncorroborated evidence of that child because children are classified by the law as unreliable witnesses."
His Honour then ruled as follows:
"I think the absence of any reference to that issue, Mr Hogan, in section 106A and following in the Evidence Act, really should mean that you shouldn't say that, shouldn't put to them that the evidence is of lesser quality than sworn evidence, given the age of the child. The procedure is there because of the age of the child and the particular circumstances. A statement can be read. Perhaps I will start again. Normally evidence from a child who is competent is given on oath but in cases of this kind, where the allegation is against a defendant who is a member of the household, in other words is living in the house from time to time relevantly, and who is a close family member - uncles are within the definition - this child's statement can be handed up; obviously in circumstances such as here where the child fails to give evidence.
It doesn't sound right to my ear that parliament would set that up and then say, 'But when that occurs the evidence is of less worth.' The fact remains that it is unsworn evidence from a child who's only 9, and that has aspects about it about which the jury, as a matter of commonsense as parents might have a view but I'm not going to give it a judicial - I don't think I should say anything about it and I don't think you should and if you do - subject to what you might say afterwards, if you do I will stop you."
His Honour qualified his conclusion, saying:
"But that's a tentative view. I will have a think about it, and if I feel different we will mention it again."
Ground 1 as Amended
The appellant obtained leave at the hearing of the appeal to delete ground 1 and substitute the following ground:
"The learned Judge erred in law in allowing the Crown to lead expert evidence of the presence of silicone oil in the anus of [TR] at his autopsy.
Particulars
(a)The evidence of [SR] suggests that the offences concerning [TR] most likely occurred in 1997 whereas [TR] died in July 1998;
(b)The evidence of Dr Trenthim‑Fryer was that he would have expected the silicone oil to be expelled from the body within three days; and
(c)The fact that there was silicone oil in the anus of [TR's] anus is irrelevant to the question of whether the [appellant] committed the offences the subject of the indictment because the offences were alleged to have been committed a significant amount of time prior to [TR's] death."
The Crown Prosecutor conceded that counts 2 and 4 on the indictment were more likely to have occurred "some time in 1997" and that the presence of silicone oil suggested that an offence had been committed on TR approximately three days before TR died. Counsel for the Crown also conceded that this could not prove any of the offences charged in the indictment. Although silicone oil was detected in TR's anus at his autopsy, which tended to establish the commission of an offence shortly prior to his death, it was contended by counsel for the appellant that the evidence was irrelevant to the question whether the appellant had committed the offences the subject of the indictment.
It was further submitted that the evidence could not be used to prove the offences against TR because the offences the subject of those charges were alleged to have been committed on the same date and at the same place as the offence in count 1, which was alleged to have been committed against SR on a date unknown between 1 January 1997 and 9 July 1998 at Broome. There were incidents described by SR after the boys returned to Broome in 1998, but these concerned persons other than the appellant.
In any event, evidence which seeks only to bolster the credibility of a witness is not admissible. In R v Turner [1975] QB 834 at 842 Lawton LJ said, "In general evidence can be called to impugn the credibility of witnesses, but not led in chief to bolster it up." Evidence is not admissible if its purpose is to give reasons why the witness should be regarded as reliable, unless and until the opposition puts this in issue on the basis of some mental disability or abnormality: R v Robinson [1994] 3 All ER 346.
It was contended by counsel for the appellant that, unlike the medical evidence of injuries to the anus of both SR and TR, which suggested older injuries (potentially corroborative of the evidence of offences the subject of the indictment), the presence of the silicone oil could only establish that an offence had occurred within a few days of TR's death. As there was no credible evidence that an offence was committed by the appellant close in time to the death of TR, it was contended that such evidence was simply irrelevant: cf Markby v The Queen (1978) 140 CLR 108 at 116, per Gibbs ACJ. It was also contended that the evidence did not, as suggested by the learned trial Judge in his summing up, answer the suggestion that SR imagined these things, because SR may not have witnessed TR being penetrated just prior to his death.
The direction given by the learned Judge was as follows:
"As I say, it's parliament's way of solving the problem that sometimes arises in these matters, that is, the problem of getting the evidence before a jury for their consideration."
It was conceded by the Crown that the relevant evidence was not evidence of "relationship". Likewise, it was not evidence that would satisfy the test of admissibility of similar fact evidence admissible in accordance with the decision in Pfennig v The Queen (1994) 182 CLR 461. If the evidence was irrelevant, the question whether its prejudicial effect outweighed any probative value it might have had did not arise. It should have been excluded as irrelevant. As McKechnie J has pointed out, counsel for the prosecution at the trial conceded that there was no evidence that implicated the appellant in any act of penetration shortly before TR's death. It follows that the evidence did not constitute corroboration because it was not probative in respect of the issue of the appellant's guilt in respect of the alleged offences.
In any event, the evidence was not led as corroboration and the jury was not directed that it could be used for that purpose. While it had the potential to confirm part of the complainant's testimony, I agree with McKechnie J that the principle to be extracted from R v Turner [1975] QB 834 is that evidence which bolsters the credibility of a witness is admissible provided that the evidence is in admissible form and is relevant to a fact in issue. So far as the present case is concerned, I agree with McKechnie J that the evidence was inadmissible for the reasons stated by his Honour, with the consequence that ground 1 has been made out.
I also agree that it would be appropriate that the interview or interviews with a complainant with a view to the making a s 106H statement should be recorded on video so as to provide an accurate record of the making of the S 106H statement.
It needs to be borne in mind, however, that SR's evidence of the sexual abuse perpetrated upon himself and TR was not uncorroborated. There was medical evidence that both of the boys had anal injuries consistent with the penetration of a blunt object on more than one occasion.
Ground 5
Ground 5 contended that the learned trial Judge erred in the exercise of his discretion in allowing the complainant's statement to the police to be read in evidence pursuant to s 106H of the Evidence Act 1906 (WA). Ground 5 was supported by the following particulars:
"(a)The learned trial Judge had found that the complainant was capable of being sworn and that he was capable of giving an intelligible account of the events the subject of the indictment.
(b)The complainant was given adequate opportunity to give an account of the events the subject of the indictment.
(c)The complainant was prompted to remember the incidents the subject of the indictment, but gave no evidence of any of the alleged offences.
(d)The account of the events in question given to the police officers was not videotaped.
(e)There is no record of the specific questions asked of the complainant by the police officers which resulted in the statement."
Section 106H of the Evidence Act provides that:
"(1) In any Schedule 7 proceeding, a relevant statement may, at the discretion of the judge, be admitted in evidence if -
(a)there has been given to the defendant -
(i)a copy of the statement; or
(ii)if the statement is not recorded in writing or electronically, details of the statement;
and
(bthe defendant is given the opportunity to cross-examine the affected child.
(2)If a relevant statement is to be admitted, evidence of the making and content of the affected child’s statement shall be given by the person to whom the affected child made the statement.
(2a)Subsection (1) does not affect the operation of section 106G.
(2b)A written statement by a person to whom an affected child made a relevant statement is admissible under section 69(2) of the JusticesAct 1902 if the requirements of that subsection are complied with.
(2c)A relevant statement recorded on video-tape is admissible to the same extent as if it were given orally in the proceeding in accordance with the usual rules and practice of the Court concerned.
(3)In this section "relevant statement" means a statement that -
(a)relates to any matter in issue in the proceeding; and
(b)was made by the affected child to another person before the proceeding was commenced,
whether the statement is recorded in writing or electronically or not."
It was submitted on behalf of the appellant that s 106H is a far‑reaching provision affecting the rights of persons accused of sexual offences. Further, it was contended that trial Judges should exercise caution in admitting such evidence and Courts should be reluctant to treat such evidence as sufficient in itself to constitute proof of a criminal offence.
The authority cited for that proposition was R v Corkin (1989) 50 SASR 580. In that case the accused was charged with sexual offences involving a girl named M who was 9 years of age at the time the offences were committed. The course of conduct involved terminated in October 1987. The first complaint was made to an aunt on 31 December 1987 and amplified to her mother on the same day. It was held that evidence of the complaints was not admissible at common law because they were not made at the first reasonable opportunity: R v Lillyman [1896] 2 QB 167; Sparks v The Queen [1964] AC 964; and R v Freeman (1980) VR 1. It was held by the trial Judge, however, that such complaints were admissible under s 34 of the Evidence Act 1929 (SA) which was introduced by an amendment which came into force on 1 May 1988. This was prior to the appellant's trial, but subsequent to the most recent offence charged. The trial Judge held that the amendment was procedural and applied to a trial commencing after the Act came into force: cfMaxwell v Murphy (1956) 96 CLR 261. On appeal, this view was rejected by King CJ, Millhouse and O'Loughlin JJ. King CJ said at 583:
"I am satisfied … that the effect of the section is to render evidence of complaints, which satisfy the common law tests, admissible, where the alleged victim is a young child, as evidence of the facts stated in the complaint and to do so irrespective of whether the child gives evidence of those facts."
It was contended on behalf of the appellant that the purpose of s 106H was such that the procedure set out in the section should only be applied where the complainant is incapable of giving evidence at all, or where there is evidence that the child finds the experience of giving evidence extremely traumatic. It was submitted that, in the present case, the complainant SR was neither traumatised nor incapable of giving evidence.
Section 106H was enacted to implement the recommendations of the Western Australian Law Reform Commission in its Report on Evidence of Children and Other Vulnerable Witnesses, which was released on 10 May 1991 and recommended, among other things, that a child's examination‑in‑chief may be given by video link from a remote room and recorded on videotape and that cross‑examination could be similarly conducted.
Section 106H of the Evidence Act, as originally introduced in 1992 by the Acts Amendment (Evidence of Children and Others) Act 1992, provided that:
"(1) In any Schedule 7 proceeding, a relevant statement may, at the discretion of the judge, be admitted in evidence if -
(a)there has been given to the defendant -
(i) a copy of the statement; or
(ii)if the statement is not recorded in writing or electronically, details of the statement;
and
(b)the defendant is given the opportunity to cross‑examine the affected child.
(2)Subsection (1) does not affect the operation of –
(a) section 106G; or
(b)section 69 of the Justices Act 1902, other than subsection of that section.
(3)In subsection (1) "relevant statement" means a statement that –
(a)relates to any matter in issue in the proceeding; and
(b)was made by the affected child to another person before the proceeding was commenced,
whether the statement is recorded in writing or electronically or not."
The proceedings at the appellant's trial in this case were a "schedule 7 proceeding".
By the Acts Amendment (Evidence) Act 2000, s 106H(2) was repealed and the following subsections inserted instead:
"(2)If a relevant statement is to be admitted, evidence of the making and content of the affected child's statement shall be given by the person to whom the affected child made the statement.
(2a)Subsection (1) does not affect the operation of section 106G.
(2b)A written statement by a person to whom an affected child made a relevant statement is admissible under section 69(2) of the Justices Act 1902 if the requirements of that subsection are complied with.
(2c)A relevant statement recorded on video-tape is admissible to the same extent as if it were given orally in the proceeding in accordance with the usual rules and practice of the Court concerned."
In my opinion, there is nothing in s 106H which would limit the discretion of a Judge in the manner submitted by counsel. In any event, the first attempt to have SR give his evidence by video link failed when SR found himself unable to give any relevant evidence about the alleged offences. In my opinion, for that reason alone, it was appropriate to admit the statement under s 106H.
It was contended that Murray J should have exercised his discretion not to admit the statement. First, it was submitted that, following questions he had put to the complainant, LA Jackson DCJ had found on 24 October 2001 that the complainant was capable of being sworn and, by inference, was capable of giving an intelligible account of events [AB24]. SR was then sworn and examined by counsel for the prosecution. It is apparent that for some reason, not itself apparent from the transcript, SR was then reluctant or unable to provide any details of the alleged offences. Counsel then proposed to have the written statement made by SR to the police admitted into evidence under s 106H of the Evidence Act. This was the statement dated 10 February 2000. Counsel for the defence indicated a need to cross‑examine on the statement. The case was then adjourned to 3 December 2001.
It was submitted that the way SR gave his evidence suggested an absence of reluctance or inability to speak of other distressing events and circumstances surrounding the alleged offences, such as the allegations that the appellant grabbed him, ripped his shirt and burnt his clothes [AB29]. Secondly, it was submitted that SR was given an adequate opportunity to give an account of the offences the subject of the indictment [AB25‑38]. Thirdly, it was submitted that SR was prompted by the prosecutor to remember circumstances relevant to the offences the subject of the indictment, but he was unable to give evidence of any offences [AB28‑33]. Fourthly, it was submitted that the first three interviews of SR by police were not videotaped and the officer did not take verbatim notes of the interviews [AB65C, 319‑366]. Fifthly, it was submitted that SR's mother was present during the interviews by police [AB84], although she actually denied being present [AB171]. Sixthly, there was some suggestion that she applied some pressure to SR when he was speaking to the police [AB81, 327‑328, 351 and 382].
It was also submitted that the way in which the statement was presented would deprive the jury of the benefit of observing the things that it would ordinarily be able to observe of someone giving oral evidence, either in person or by video. It was argued that it may have been important for the jury to consider the questions asked of the police officers; the complainant's initial responses to questioning, compared to his answers to questions given much later in the interview; and what his mother said or did before SR responded to questioning by the police officers. It was acknowledged that the situation may well have been different, if the initial interview was or the initial interviews were either recorded on video or in verbatim handwritten notes. For these reasons it was submitted that this was not an appropriate case to invoke the discretion under s 106H of the Evidence Act.
L A Jackson DCJ, who presided at the attempted pre‑recording of the complainant's evidence on 24 October 2001, had found, after conducting a voir dire, that SR, who turned nine on the following day, was capable of being sworn. SR was duly sworn and gave his evidence by closed‑circuit television. It was accepted by the prosecution that, during his evidence‑in‑chief at the pre‑recording, he became unresponsive. Although he gave evidence about physical abuse by the appellant, he did not give any evidence of sexual abuse by the appellant, either upon himself or his brother. He did, however, give evidence that he had told his mother and the police about what the appellant had done to him and said that what he told them was the truth.
It was against this background that the application was made by the prosecution that SR's statement to the police be admitted into evidence pursuant to s 106H of the Evidence Act. The case was adjourned to 17 December 2001 to enable that application to be made and evidence to be led in support of the application. The application was heard by Murray J, sitting in the District Court, on the basis that the evidence was to be pre‑recorded and that there was a pending application for severance of the indictment against the appellant and his co‑accused, Mr Watson. Thus, there would, in effect, be two statements of evidence taken by Murray J and recorded so that they could be given in evidence at each of the separate trials pending of the appellant and the other alleged offender.
The relevant statement under s 106H was the statement dated 10 February 2000. The Crown undertook to separate the contents of the statement which were applicable to both alleged victims, so as to enable separate trials to proceed, should the matter go forward. The Court was informed that, at the pre‑recording of the evidence, counsel for the appellant had been given detailed particulars of what the Crown relied upon in the evidence of the witness, Mrs Watson.
Constable Randall (nee Rayner) gave evidence that she took the s 106H statement from SR. The statement was taken over three days at the Kununurra police station. Constable Randall said that she made notes of what SR said so that she could get the sequence of events. A few hours were spent on the process each day for each of the three days. The statement was prepared from the notes and put on the computer. At that time Constable Randall had prior experience in a fairly large number of interviews of this kind. SR was then aged seven years. Constable Randall had been taught the technique, including the avoidance of leading questions, in the Sexual Assault Course conducted by the Detective Training Services in Perth. SR's mother was present on each occasion she met with SR.
Constable Randall testified that SR answered her questions "straightaway". However, the manner in which he spoke became "a lot more reserved" when it came to talking about the relevant incidents. The complainant SR told his mother that he had been sexually abused and his mother "mentioned the fact that it could have been an uncle or a grandparent but I can't guarantee exactly what she said".
Constable Randall first became aware of allegations made by SR's brother TR as well as SR when she was interviewing SR. The Constable said that there was a difference between SR's ability to respond to questions such as "Where do you live?" as opposed to questions about sexual abuse. Questions like the first described produced "straight out" answers. Questions about sexual abuse resulted in SR being "… quieter [and he] appeared shy, just cowering, you know". Constable Randall said that the use by the complainant in the statement of the occasional Aboriginal word for various parts of the body were the words in fact used by SR.
The interview continued on the second day. Every now and then there would be a break. Constable Randall gave evidence without objection that SR was "capable of giving a chronologically correct exposition of what he said had happened to him and his brother". It was on the basis of the notes and checking with SR that the notes were then put in statement form reflecting the chronology of events as related by SR. The statement was then typed as a formal statement and signed.
In determining whether to allow the statement by SR to be admitted into evidence and read to the Court, Murray J indicated to counsel that:
"This path seems to me to be one which is generally facilitative of the process of a child witness giving evidence in various forms. The viva voce format is clearly dealt with and then you come to this provision - I'm sorry, and is dealt with in the context of a child under 12 being able to give sworn evidence if stripping the matter of religious connotations attendant upon the oath. There's an understanding about the importance of giving evidence and the duty to tell the truth.
That examination was conducted by Judge Jackson and he pronounced himself to be satisfied about that but the point is that sort of inquiry by the court seems to me to be directed towards establishing that what may come from the child then is something which may carry a certain probative value, given to it by the understanding of the process and the need to tell the truth.
The rather lesser qualification to give viva voce evidence unsworn of course comes from 106C, 'able to give an intelligible account of events which he or she has observed or experienced,' but it is nonetheless a provision which is related to the capacity of the child as a witness to give not necessarily a sequential but an intelligible account at least of things that have happened to the child.
So when one comes to consider the admissibility of the statement, I note that under 106H(2) evidence of the making and content of the statement is ultimately to be given to the court by the person to whom the child made the statement. It seems to me that if I am to exercise my discretion to admit such a statement into evidence, it ought to be upon the basis of an understanding as to the circumstances in which the statement was made, the process which was engaged in, the sort of questioning that occurred - things which are designed to satisfy the court one way or the other whether or not the statement would have a probative value as an account as it purports to be given by the child - - -"
Once the s 106H statement was held admissible into evidence for the purposes of s 106H, it was accepted by all concerned that it was subject to cross‑examination. A question arose whether the discretion to admit the statement or not should be exercised before or after cross‑examination to test whether the answers to questions in examination were truly responsive. It was conceded by counsel for the prosecution that the latter was the correct approach.
As already mentioned, the first three interviews of SR by police were not videotaped and verbatim notes of the answers were not taken. There was some suggestion on behalf of the appellant that SR's mother [F] applied some pressure to SR during the course of the interview. A number of examples were relied upon. The first was identified in the following context in cross‑examination by counsel for the appellant:
Then you ask him, 'Maybe not this time but maybe another time. That's okay. Did nan ever make you lick anything? Can you remember?' and the answer is, 'No.' And then you ask him, 'Are you really - are you thinking really, really hard for me?' and then [F] comes in and says:
'Did she ever tell you to do anything rude to her, [SR]? That's what they're asking. If she did, you better tell the truth. Don't cover up for no-one'?
---Mm.
Do you remember [F] taking that type of assertive role during that interview?---Yeah.
And [SR] still says no?---Yeah.
And then [F] says:
'They done rude to you. Well, this mob - I want something done about it because you told me different.'
That's [F]?---Yes.
Do you agree - saying those things?---Yes.
Being quite assertive with [SR]?---That's correct.
And what I'm putting to you is that that was the way [F] was involved in that interview. She was quite assertive?‑‑‑In this video interview.
Yes?‑‑‑Yes.
And what I asked you before was that you don't have any specific recollection of her being different in her role between when the video was being taken and when you were taking your notes?‑‑‑I know that when I was taking the notes from [SR] she was also looking after her other child, so she did not have ‑ ‑ ‑
But she - - -?---She was taking her time with the other child.
But she was saying things from time to time. Would you agree with that?---Yeah, I would suggest she was.
And could I suggest to you that she is an assertive person?
---Yes.
And that she is assertive with [SR]?---As a parent, I believe.
Yes, and she was assertive when she felt he wasn't answering questions properly?"
Constable Randall denied that SR's mother was assertive at the time when she was taking the first statement from SR and making notes:
"… because I'm told when I'm taking a statement that if someone is going to start putting ideas into someone's head then I can't take the statement."
Constable Randall agreed that SR was quick to respond to questions about matters other than sexual matters. In relation to sexual matters, he was slow to respond. On these occasions the Constable said that she did not recall his mother prompting or pushing him to respond. She would simply say things like, "Just tell the truth" or "Just tell the truth because I hate it when you're telling lies."
Constable Randall agreed that SR raised the subject of videos and books in a later interview, but she was not sure whether he mentioned them in the initial interview. Constable Randall said that SR's demeanour and responsiveness in the video‑recorded interview which comprised his evidence‑in‑chief was "about the same" as in the first interview when she made her notes. The notes were tendered in evidence.
Murray J then heard submissions on the admissibility of the statement in the exercise of discretion. Counsel for the appellant contended that the onus was on the prosecution to persuade the Court to exercise its discretion in favour of the admissibility of the statement. It was pointed out that SR's mother, who had been present when the statement was taken by police, had not been called to give evidence, which put counsel for the appellant at a disadvantage. It was contended that it would have been appropriate to have evidence about her role when the statement was taken in her presence at the Kununurra police station. It was submitted that in the video interview SR's mother had demonstrated "quite a firm view about how he should be responding to questions and quite a degree of forcefulness as to what he should be saying". It was also submitted that there had been no opportunity to test what she had said to SR prior to the interview. It was also submitted that it was relevant that SR gave his pre‑recorded video evidence at a hearing when he was in a remote room without his mother next to him. It was said to be significant that he did not make any allegation of sexual misconduct at that time.
It was further submitted that the relevant evidence did not constitute an unprompted voluntary, verbatim account. It followed lengthy questioning on earlier occasions. The jury did not have the benefit of evidence regarding the complainant's initial responses to questions about sexual misconduct, what his mother may have said to him, how long it took him to respond, whether he was very clear about what he was saying, or the extent to which the answers to questions were influenced by his mother. It was also submitted that it would have been fair to the accused if the original interview had been recorded on video, given the evidence about SR's mother's role in the original interview, which had been described as "forceful", the recollection of the constable who was conducting the interview, including the prompting of SR, and the fact that a number of leading questions were asked.
Counsel also drew an analogy with the situation which existed before the video‑recording of police interviews with suspects. Constable Randall had admitted that not everything said in the interview was written down. Two months later there was a further interview conducted, which was recorded on video for the purposes of the s 106H statement being taken. There was evidence within that video of a "forceful" position being adopted by SR's mother, which was recalled by Constable Randall as being the same as during the original note‑taking exercise as it was on the video.
Mr Hogan gave an example from pages 9 ‑ 10 of the transcript of an unresponsive answer in which the complainant named a nephew instead of the accused, who was the complainant's uncle. Page 10 of the statement contains an indication of statements by the complainant's mother prompting the complainant to name the appellant. It was contended that this meant that the statement was taken under circumstances which were unfair to the appellant.
Counsel for the prosecution, Mr Tavener, submitted to Murray J that the relevant statements were admissible pursuant to s 106H. They had been provided to the defence and the child had been made available for cross‑examination. Constable Randall, who conducted the first interview, knew nothing about the matter beforehand except that SR's mother told her that SR had apparently been sexually abused by a relative.
Constable Randall's evidence was that SR's mother took no active part in the initial interview, although there was some admonition to SR by his mother "to tell the truth". The prosecution submitted that there was nothing improper about that. I agree.
When the initial statement was taken, Constable Randall knew nothing about the complainant or the offences alleged to have been committed on him. She did not know any of the names involved, including the name of the alleged perpetrator. She had never heard of the deceased boy TR, or that he had committed suicide at the age of nine. It was submitted that the mother's admonition to "tell the truth" was not designed to affect the complainant's evidence, but a warning about the seriousness of the occasion and the need to tell the truth to the police.
At the interview, Constable Randall, as much as possible, took down in writing SR's own words using English and sometimes an Aboriginal word to express what had happened to him. Because the constable had no prior knowledge of what was going to be alleged, she was unable to prompt SR by asking leading questions.
Later on there was another interview which contained some leading questions and SR's mother became involved in the interview, with the result that the prosecution, quite properly, did not seek to admit the statements made in that interview into evidence. The content of that interview was made available to the defence and was used by defence counsel when cross‑examining Constable Randall. It was a matter for the jury at the trial to assess the evidence.
Murray J ruled that the statement obtained by the police was admissible in evidence at the trial under s 106H. It was acknowledged that SR would be cross‑examined on the statement at the trial, subject to any objection on other grounds. As his Honour said in ruling on the approach to determining the admissibility of the statement under s 106H:
"In short, in essence I am concerned I think in relation to this application to understand the process by which the relevant statement was taken and be able to form a view as to its probative value, its evidentiary value from a general point of view, without considering what questions might be raised in respect of its weight in its description of matters relevant to the indictments which will go forward ultimately separately against the two accused persons presently involved in these proceedings.
Against that background I notice that the sort of statement that I'm concerned about is a statement in a schedule 7 proceeding, which this undoubtedly is, by an affected child which, in my view in relation to the proceedings generally, the child is, bearing in mind the way in which that term is defined by the act, section 106A. The other aspect upon which I would just in passing focus some attention is the fact that I am concerned with what is described in the act as a relevant statement, which phrase is an odd description in a sense but by a relevant statement by section 106H(3) the act defines to be a statement which contains relevant matter in a term which is perhaps not as precise as it might otherwise be when it refers to a statement that relates to any matter in issue in the proceeding, the proceeding being the proceeding initiated by an indictment against the accused persons in relation to a particular offence which, as I say, to be a serious offence of the kind which is gathered into the ambit of schedule 7 to the act.
The evidence upon which the crown relies, that given by Constable Randall, relevantly, it seems to me, she has described the process which I know followed a complaint said by [F], the child's mother, to have been made to her some months before this process was initiated, culminating in the statement dated 10 February 2000. I have regard, as I think I may, in the course of these proceedings to the fact that the mother's statement indicated that when the complaints were first made to her she expressed disbelief that they could be true and she said she simply went along with it and accepted what the child said ultimately and there was a discussion and a number of references that occurred over a period of time as between mother and son in relation to the matters of which he had spoken. So there was a fair exchange there but there is no evidence to indicate that that exchange adversely affected the probative value to be drawn from the statement made by the child in the circumstances of its making.
What I have in mind there is that there is affirmative evidence from the constable of the process that she undertook, one that she was experienced in doing and one which seems to me to have been conducted correctly, in that she took her time, she took it in short bursts over a period of 3 days and when there appeared to be indications that the child's concentration was flagging she would change tack, take a break, talk about something inconsequential and the like. She also said that she was careful not to ask leading questions so there is affirmative evidence about that. She was conscious of the need to avoid planting ideas in the child's head.
Indeed, although she had had a brief discussion with the mother, who was present throughout the period, she knew nothing by way of any detail or beyond the most general statement made by the mother that the child had complained to her of - that it had been abused was the term that appears to have used at that time, and she knew nothing and was told nothing else by the mother and so it was that she introduced the topic of the relevant subject matter by saying, 'Well, mum's told me that something happened to you. Will you tell me?' and it developed from there.
I am satisfied about the nature of that process and the care that was taken, although, as Mr Nash says, I have no evidence specifically before which informs me precisely as to the questions that were asked by the constable in the course of eliciting the information. There are some notes that were made but they are of the broadest kind only, headings really, for various topics and the process of going back over this material and elaborating upon it was that which produced the final typewritten statement in the latter part of the interview process.
The child, she said, was talkative, although more reserved when it came to talking about sexual incidents. The constable has given as the flavour of the statements that the child made by using the sort of language that was used by the child and faithfully, as I understand the process, recording that in the written document and so it is the case that she has not sought to correct or put into anatomically correct form statements that were made by the child. She has used terms from the child's own language, his own Aboriginal language, like mini and munya, where those terms were used by the child and that seems to me to be a helpful process by which the court can make a judgment about the nature of the process in which Constable Randall engaged when taking the statement. I was satisfied with her evidence in respect of that matter.
Had the court had evidence before it that what followed by way of the video recording of an interview with the child on 4 April 2000 actually preceded the interview which culminated in the making of a statement on 10 February I think the position would have been quite different. I would then have been gravely concerned that the behaviour during the course of that videoed interview might have tainted not only what followed in the course of that interview but tainted what would follow in the course of a subsequent interview. However, it is the case that that came second and I'm not of the view that there is evidence before me which should cause me concern in relation to the exercise of my discretion that anything similar had preceded or occurred during the course of the interview which resulted in the making of the statement.
Certainly it appears that [F], the child's mother, was quite assertive about it in 4 April interview but Constable Randall said in evidence that she did not behave in that sort of way when the statement was taken. As I understood her evidence, she said the mother seems to have taken much less of a role and seems to have more properly adopted the role which was intended for her to perform, of simply being there as a potential comfort and support when required. The constable said she was much more involved with the little sister who was present at the same time.
I have considered what might affect the probative value of the statement and it seems to me that nothing emerges which would make it unfair to exercise the discretion in a way which would - so as to result in the admissibility of the statement being declared in terms of the act. In relation to those sorts of considerations I should say this I think simply for the record: that of those authorities from other jurisdictions to which Mr Tavener referred the court in an outline, the case Corkin (1989) 50 SASR 580 and particularly the obiter observations of O'Loughlin J seem to me to be of assistance, with respect."
For these reasons, Murray J ordered that the statement would be admissible in evidence against the appellant, subject to cross‑examination on behalf of the appellant (then the accused). It was also made clear that the statement was admissible in evidence at the trial, so far as it was relevant and related to any matter in issue in the proceedings. This was necessary because there were two separate trials in which there were two separate accused, both involving allegations of offences against the complainant and his brother TR.
Murray J also noted that:
"… On the other hand, there may also be other circumstances or factors generally affecting admissibility under the general law of evidence and not specifically related to the application of section 106H of the Evidence Act which will preclude the admission into evidence of portions of a statement which I have held to be admissible in the sense that it satisfies, to my mind, the requirements of section 106H and does so in circumstances which make it proper for me to declare that in the exercise of discretion the court would admit the document in evidence despite its hearsay character, having regard to the terms of section 106H."
It was submitted by counsel for the respondent that the procedure under s 106H should be applied and followed either where the complainant was incapable of giving evidence at all, or where there was evidence that the child found the experience of giving evidence traumatic. It was further submitted that, in the present case, the legislature had not sought to dispense altogether with the requirement for a child witness to give oral evidence. It has been recognised, however, that children do find it difficult to give evidence in open court, particularly in a context where the accused is a relative who has been in a position to exert authority or influence over the complainant. In the present case it was submitted that the complainant was neither traumatised nor incapable of giving evidence. While it is true that his Honour Judge L A Jackson found, on the basis of the voir dire, that the complainant SR was capable of being sworn, he also found that he was "by inference", "capable of giving an intelligible account of events". In fact, as the transcript clearly indicates, he later demonstrated that in relation to the relevant facts and events, he "clammed up" in the witness box and was apparently incapable of giving any relevant evidence, when called to give evidence by video link from a remote room. Although he did give evidence about the applicant grabbing him, ripping his shirt and burning his clothes, he was entirely unresponsive when questions were put to him about the offences the subject of the indictment. It was this very unresponsiveness which led to the decision to provide the evidence by way of the procedure provided for by s 106H of the Evidence Act.
As earlier mentioned, the initial interview with Constable Randall in the presence of SR's mother was not video‑recorded. In my opinion, given the preliminary nature of the interview, this is not surprising. There had been disclosures made to SR's mother which had prompted her to go to the police. Given that there were allegations, not only of misconduct by the appellant, but also by other members of the family, the practicalities of the situation called for a series of preliminary interviews to be conducted.
In my opinion, in all the circumstances, the course followed to record the evidence of the complainant on video drawing on the statement under s 106H of the Evidence Act was appropriate, given the opportunity before Murray J for cross‑examination of the complainant who gave evidence via a video‑link.
For these reasons I consider that ground 5 has not been made out. I would only add that I agree with the comments made by Wheeler J regarding the approach which should be taken in relation to the preparation of a statement under s 106H of the Evidence Act.
Ground 6
Ground 6 contends that:
"In the alternative to ground 5, if the Learned Judge did not err in his discretion to admit the statement of the complainant under s 106 of the Evidence Act, the Learned Trial Judge ought to have:
(a)directed the jury that the evidence of the complainant in that regard was not taken on oath and they should take that in to account in assessing the evidence; and
(b)warned the jury that it would be dangerous to convict the applicant on the basis of that unsworn statement of the complainant unless they were satisfied beyond reasonable doubt as to its truth and accuracy.
(c)failed to adequately warn the jury about the danger of convicting the applicant on the complainant's evidence."
In support of this ground it was submitted that if the Court concluded that Murray J did not err in the exercise of discretion to admit the statement under s 106H, it was necessary, to ensure the fairness of the trial, that the trial Judge should have given the jury a warning about the use it could make of the statement. It was contended that the oral evidence of a witness demonstrates more about a witness than a witness who gives evidence in documentary form: Butera v DPP (Vic) (1987) 164 CLR 180 at 198, per Dawson J. In my opinion, this submission entirely overlooks the fact that the evidence in the statement was the subject of cross‑examination by counsel for the appellant on 19 June 2002 by means of video‑link in proceedings before Murray J which were recorded on video and played to the jury at the trial. In these circumstances, the jury were able to observe for themselves the demeanour of the witness as recorded on video. This places the evidence on an entirely different footing to an out‑of‑court statement by a complainant of the kind referred to in R v Corkin (1989) 50 SASR 580; R v Knigge (2003) 6 VR 181; and R v NRC [1999] 3 VR 537. Juries are regularly instructed by Judges not to draw any inference one way or another from the fact that the child is giving evidence by video‑link from a location outside the Court, or which has been recorded on some earlier occasion. Such evidence cannot be equated to an out‑of‑court statement.
The specific complaint made about the use of the s 106H statement and the video‑recorded cross‑examination was that the learned trial Judge's direction to the jury may have unfairly elevated the weight that could be applied to it "by leaving the impression that the statement had received judicial imprimatur". Two particular passages in the summing up by the learned trial Judge, Fenbury DCJ, were relied upon. The first of these referred to the proceedings before Murray J as follows:
"The second preliminary matter just in relation to counsel is that I was concerned in relation to this statement and the provisions of section 106H of the Evidence Act about whether there had been an opportunity for cross-examination as required by the section. I didn't have a copy of Murray J's findings at that time or the transcript of it but one has now been located and I notice that the order made about the admissibility of that statement was made on 17 December 2001 and therefore the second interview of the complainant on video being June 2002 was an opportunity for cross-examination so my concern about that doesn't arise. So that's that."
The jury had the benefit of both the s 106H statement and the video‑recorded evidence of the subsequent cross‑examination. Suffice it to say that, in my opinion, there is no substance in this aspect of ground 6.
The second passage in the summing up was as follows:
"The second thing I want to mention to you is the way the evidence has been laid out before you. That is, you will [sic] aware - that statement was read, this statement. It's referred to in the chronology that you have. It's the statement taken - in the middle of the page there - 10/2/2000. '[SR] gives written statement to police. Read out in court.' You remember that was read out in court by the prosecutor.
You will note that when [SR] was called to give evidence on the video, which you can see there - the second‑last one from the bottom - was 24/10/2001 he was not forthcoming - he did not give evidence along the lines of his statement, as was anticipated by the system, although he did confirm on oath during that first interview, at page 30 of the transcript, that what he'd told police in his statement on 2 February about [the appellant] and what he did to him and his brother [TR] was the truth. So he did say that but he didn't give anything like the detail he gave in the statement.
You will be aware that he was then called again later, on 19 June 2002, the last entry on the chronology and the same sort of thing happened, although again he did, when cross-examined, say some things in support of what he was saying generally, which you have been reminded about by counsel. Now, you need to remember that [SR] was very young during this period. During the taking of the statement I think he was about 7 perhaps and then during the two interviews he was 9 - just 9, the day before his 9th birthday in the first video interview and he was 9 years 8 months on the second interview.
I told you earlier I think during the trial that what parliament had said about the use of this video; that when dealing with a child witness the use of the video is a recognition that the young have difficulties in giving evidence about these sorts of matters and so parliament has recognised that and they have provided for the giving of evidence by video. I have told you already that's a normal procedure. I have already done that.
Parliament also recognises that the young can have special difficulties in these matters, not only because they are young but when the person accused is a close relative, like an uncle, or where the accused person is in the same household as the complainant. There were periods of course when that situation existed here. So there is this other section in the Evidence Act, similar to the video section that I've described, where a judge is allowed, if he or she thinks fit, to permit the written statement of a child witness taken by investigating police to be read out to the court, but it's only for children under 16 and, as I say, the procedure is only permitted because - and it has been set up by parliament - child witnesses notoriously have difficulty in dealing with legal aspects of these matters, as I have mentioned, especially in talking about them, giving oral evidence about them, more especially when the accused is a close relative and living in the same household or spending time in the same household. So is it a normal procedure which occurs when the problem arises that clearly arose in this case."
In my opinion, the directions and explanation which the learned trial Judge gave were entirely proper. I do not consider that any further warning or caution was required.
It was submitted, however, that a warning should have been given to the jury to the effect that:
(a)The s 106H statement may not be an accurate and objective account of what the child really said;
(b)The statement may not be capable of being properly tested in cross-examination;
(c)They should be reluctant to treat the statement as sufficient in itself to constitute proof of a criminal offence;
(d)There were a number of inconsistencies in [SR's] evidence;
(e)[SR] gave sworn evidence which was tested in cross‑examination and that sworn evidence carries more weight than unsworn evidence;
(f)It would be dangerous to convict on the uncorroborated statement of [SR] unless, after scrutinising the other evidence with great care, they were satisfied as to its truth and accuracy.
I have already referred to the way in which this aspect of the case was dealt with by Fenbury DCJ on 29 July 2003 in the context of s 106D, which prohibits a Judge from warning or suggesting that it is "unsafe" to convict on the uncorroborated evidence of a child. In the present case, of course, the evidence was not entirely uncorroborated.
SR's s 106H statement did not stand alone, although there may have been some risk that the statement might be given undue weight. The jury had the opportunity to observe SR's demeanour because his cross‑examination was pre‑recorded on video. The jury might well have been directed to scrutinise the s 106H statement carefully in the light of the evidence in the case and what they had seen of the complainant on video.
In my opinion, however, it was not necessary to make a specific direction that the s 106H statement was not one made on oath. Parliament enacted the statutory procedure by which unsworn statements made by certain child complainants may be read into evidence at the trial of an accused charged with a sexual offence. This is to facilitate obtaining relevant evidence from children. There is no qualification in the Evidence Act which suggests that such evidence should be regarded as of any lesser quality than other evidence.
As to ground 6(b) and (c), I do not consider that directions of the kind suggested are generally necessary or desirable. The trial Judge considered whether to direct the jury that SR's evidence in relation to his statement was not taken on oath and decided not to do so. Section 106D of the Evidence Act strictly forbids a trial Judge from warning a jury that it is unsafe to convict on the uncorroborated evidence of a child complainant because children are classified as unreliable witnesses.
In my opinion, a statement under s 106H of the Evidence Act is admissible in evidence by virtue of the authority of Parliament. There is nothing in the Evidence Act to suggest that such evidence is necessarily or inherently to be regarded as less cogent than sworn evidence. Further, it must have been very clear to the jury that the s 106H statement read to the jury was not on oath. In any event, the complainant gave evidence on oath that the statement was true.
Nonetheless, it is accepted that a trial Judge retains the ability to warn a jury about the reliability of evidence of a particular child complainant if that is deemed appropriate: Reference of a Question of Law pursuant to the Criminal Code, s 693A (Reference No 1 of 1999) [1999] WASCA 53; (1999) 106 A Crim R 408, per Kennedy J, at [5]. In my opinion, there was no need for such a warning to be given in this case. It was not a case in which a long period of time had elapsed since the alleged offences. It was not a case in which the credibility of the complainant child was so affected by, for example, inconsistencies in his evidence, that the jury should have been directed as to any "dangers" in accepting his evidence: cf Reference of a Question of Law (supra), per Kennedy J, at [9]; and see Longman v The Queen (1989) 168 CLR 79 at 85 ‑ 86, per Brennan, Dawson and Toohey JJ.
As was submitted on behalf of the respondent, a warning of the kind sought by the appellant in the circumstances of this case would impugn or undermine the basis of the amendments to the Evidence Act in 1992 of s 50, s 106B and s 106H. In Longman (supra) the High Court considered the content and scope of warnings which may be given in the context of s 50 (then s 36BE). The scope of possible warnings was discussed at 84 ‑ 90, per Brennan, Dawson and Toohey JJ. To require such a warning as that sought by the appellant in the circumstances of this case would significantly undermine the rationale of Parliament in the enactment of what are now ss 50, 106D and 106H of the Evidence Act. In my opinion, neither what is now known as the Longman direction or any variation of it would have been appropriate. A long period of time had not elapsed between the alleged commission of the offences and the trial; there was corroboration of a medical and forensic nature that the complainant had been sexually penetrated; and the real issue at the trial was whether it was the appellant who had committed the relevant offences.
In my opinion, there was no substance in ground 6.
Ground 7
Ground 7 was that:
"The convictions were unsafe and unsatisfactory having regard to the evidence at the Trial.
Particulars
(a)The evidence of the complainant was entirely unsatisfactory having regard to his evidence at the prerecording that he could remember no incident which would form the basis of [sic] offence the subject of the indictment.
(b)The complainant gave evidence in cross examination that he did not know what the applicant had inserted in to his anus.
(c)The complainant gave evidence that his mother was in the room as he was giving his evidence which was incorrect.
(d)There was a time lapse of over two years between the incidents and the report to the police.
(e)There was a complete lack of corroboration of the complaints.
(f)There were no admissions made by the applicant.
(g)The applicant had no previous convictions."
The issue raised by ground 7 is whether the verdicts were unsafe and unsatisfactory. A verdict will be unsafe or unsatisfactory if an appellate Court concludes that a jury, acting reasonably, ought to have entertained a sufficient doubt regarding the guilt of an accused such that it entitled him or her to an acquittal: Plomp v The Queen (1963) 110 CLR 234 at 244 and 250, per Menzies J; and Chamberlain v The Queen [No 2] (1983) 153 CLR 521 at 531 ‑ 532, per Gibbs CJ and Mason J.
A verdict may be unsafe or unsatisfactory even though there is sufficient evidence to entitle a reasonable jury to convict: Morris v The Queen (1987) 163 CLR 454; and Carr v The Queen (1988) 165 CLR 314 at 333, per Brennan J.
It was submitted on behalf of the appellant that the evidence of the complainant was entirely unsatisfactory, having regard to his evidence at the pre‑recording on 24 October 2001 before LA Jackson DCJ that he could remember no incident, which would be the basis of an offence the subject of the indictment, but was otherwise able to give an intelligible account of other events at the relevant time
The complainant gave evidence in cross‑examination that he did not know what the applicant had inserted into his anus [AB380], whereas in his statement he said it was with a "mango stick" [AB142]. The complainant gave evidence that his mother was in the room as he was giving his evidence, which was incorrect [AB372, 376, 384]. With respect to count 1, SR said he was obliged to suck the appellant's penis in the lounge room, yet on the video he said it was in the bedroom. There was a time lapse of over two years between the incidents and the report to the police. There were no admissions made by the applicant. The applicant had no previous convictions. There was a suggestion that SR's mother may have influenced the account he gave to police officers.
All of these matters were put before the jury and were the subject of appropriate directions given by the learned trial Judge to the jury about which I consider that there is no significant cause for complaint. Consequently, I am unable to accept the submission that the combination of those factors must inevitably lead the Court to the view that the evidence of the complainant was so unreliable as to render the convictions unsafe and unsatisfactory.
It will only be in the most exceptional circumstances that a Court of Appeal will set aside the verdict of a jury as being unsafe or
unsatisfactory. The Court of Appeal must not disregard or discount either the consideration of the jury as the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations: M v The Queen (1994) 181 CLR 487 at 493, per Mason CJ, Deane, Dawson and Toohey JJ.
In this particular case, it is of significance that the complainant did not resile from the contents of his s 106H statement that was read into evidence. It was verified on oath and there was independent corroboration of a forensic nature that he had been anally penetrated. Although there were no direct admissions made by the appellant, there was evidence of a lie regarding his use of condoms that the jury were entitled to use as the basis of an inference of a consciousness of guilt. There was no suggestion at the trial that the complainant had not been sexually abused. The issue at the trial was whether the appellant was the abuser. In my opinion, the evidence was such that it was open to the jury to be satisfied beyond a reasonable doubt that the respondent was the perpetrator of the offences alleged to have been committed on the complainant. For those reasons I consider that ground 7 has not been made out.
Conclusion
It follows, however, that the appeal should be allowed on the basis that ground 1 of the appeal has been made out with the result that the application's conviction should be quashed by reason of the wrongful admissions of the finding of silicone oil in the post‑mortem examination of TR after his death. The wrongful admission of such evidence compromised the fairness of the trial and constituted a substantial miscarriage of justice. For these reasons, I would allow the appeal. In the light of my comments in respect of ground 7, I would order a retrial.
In view of this conclusion, it is unnecessary to consider the application for leave to appeal against sentence.
WHEELER J:
Background – Investigation and Trial
This is an appeal against conviction. There is also an application for leave to appeal against sentence.
On 29 July 2003 the appellant was convicted after a trial of six counts of sexual penetration of two children under the age of 13 years. The two children were brothers and were nephews of the appellant. One had committed suicide prior to a complaint being made. The direct evidence against the appellant was therefore the evidence of the surviving complainant, whose evidence concerned offences committed against him and offences which he said he witnessed the appellant commit against his brother.
The offences were alleged to have been committed between July 1997 and July 1998, when the boys were aged 5 and 7. The surviving complainant, SR, was the younger of the two.
Broadly, the Crown case was that the two boys at various times were staying with their grandparents (their mother's parents) in Broome. Their uncle, the appellant, was staying there at the same time. Their mother was in Derby and other places at the time. In approximately 1999 however, she went to live with SR in Beagle Bay. Over a period of time he told her of a number of incidents which had occurred to him, as a result of which his mother contacted relevant authorities, and the allegations were referred to police.
The allegations underlying the indictment against the appellant included requiring SR to perform fellatio on the appellant, sexual penetration of SR's anus with a stick, sexual penetration of SR's anus with the appellant's penis and the performing of similar acts (save for the penetration with the stick) on TR. It was alleged that at the time of sexually penetrating TR, the appellant used a "plastic thing", which may well have been a condom.
The appellant was interviewed by police and denied all of the allegations. He also denied ever using or possessing condoms. However, condoms were found in his house. Medical examination of SR resulted in findings that there were physical signs of forced penetration of his anus, and a post‑mortem of TR showed injuries of that kind also. The post‑mortem of TR also revealed the presence of silicone oil in his anus. That oil is consistent with the oil used as a lubricant on many condoms.
At trial, the appellant did not take issue with the allegation that the two complainants had been sexually penetrated. His case, in essence, was that another person was responsible for that sexual penetration. It was suggested that their grandfather was the assailant.
In the present case, therefore, it is my view, that the jury should have been given a warning along the following lines. His Honour should have explained to the jury that a person who is speaking out of court, and particularly a young child, may not have an appreciation of the seriousness of the allegations being made and of the importance of being completely accurate in making them. Further, the jury should have been told that it is the long experience of the law that the evidence which a person gives can be shaped by the questions the person is asked; in particular, that some Aboriginal people for cultural reasons, and some young children because of their natural deference to authority, may be inclined to give answers which they believe that the questioner wishes to hear or may too readily agree with suggestions which they believe have been made to them by the questioner. In considering the evidentiary weight to be given to SR's written statement, the jury should consider not only the content of that statement, but should scrutinise carefully the evidence of the female constable as to the circumstances in which it was made and should, of course, in this case consider the evidence which was given by SR both in chief and under cross‑examination on the video. The jury should only place weight on the written statement if satisfied that when making it SR understood that it was important to be accurate and tell the truth, and that the content of the statement was not prompted by a desire to please or to agree with any adult person.
I do not think that it would be necessary to use any formula such as "dangerous to convict" or that there should be any suggestion from the Judge as to the degree of weight which it would be appropriate to place on the statement. Rather, in my view, what is important is that the jury should be made aware of the factors which could affect the reliability of such a statement and should scrutinise the circumstances of its making with care, having regard to those factors, before placing weight on the statement.
It is apparent from these observations, that I do not consider that his Honour the learned trial Judge should have warned the jury either in the terms suggested by counsel for the appellant at trial, or in terms suggested by the particulars to ground 6 of the grounds of appeal. However, a wide ranging discussion with counsel took place at the hearing of this appeal as to the type of warning, if any, which should have been given by his Honour. The question having been ventilated at large at the appeal, it would, in my view, be appropriate to allow the appeal upon this ground, notwithstanding that I take a view of the content of the appropriate warning different from that advanced on behalf of the appellant.
No warning of the type which I have described was given by his Honour. I have considered whether it is open to this Court to find that there has been no miscarriage of justice, notwithstanding the absence of such a warning. There are factors which would point to a conclusion that there has been no miscarriage of justice in any event. One is that counsel for the appellant did not seek a warning in the terms which I have described; however, counsel did raise with his Honour the question of whether some particular direction should be given to the jury about the potential unreliability of the written statement, so that this consideration is, in my view, of limited significance. More importantly, there was relatively limited cross‑examination by the appellant's counsel at trial (as opposed to cross‑examination on the voir dire) directed to the making of the written statement. It may be that that was a forensic decision reflecting counsel's assessment that it would be difficult to challenge the reliability of the written statement based upon any cross‑examination of the female constable, since she was fairly firm in her evidence that she had taken care to ensure that no suggestions had been made to SR as to the way in which he should answer questions.
However, there was some cross‑examination directed to the taking of the statement. In particular, counsel for the appellant put to the constable certain passages from the later videotaped interview which she had conducted and the constable agreed with counsel that on that occasion SR's mother was quite "assertive" in her questions and comments. She also agreed that SR was quick to respond to questions about matters other than sexual matters, but was slow to respond in relation to sexual matters. These were all matters which should have been placed in context for the jury by an appropriate warning from his Honour that they were matters which were capable, depending upon the jury's assessment of the process, of affecting the reliability of the written statement of SR.
In my view, it is not possible to reach the view that the evidence about the manner of the making of SR's statement was all one way, or that it pointed so overwhelmingly towards the reliability of that statement that the issues which I have discussed should not have been brought to the jury's attention.
Further, it is arguable that during the course of his directions to the jury, his Honour may have gone so far as to allay any concerns which the jurors might have had arising out cross‑examination of SR's mother and of the female constable. He described the procedure of the taking of the written statement as a "normal procedure", and simply as Parliament's way of solving a problem which sometimes arose in relation to the evidence of children. To the extent that cross‑examination might have raised concerns in the minds of some jurors about the reliability of the written statement, those comments by his Honour would have tended to deflect attention from those concerns. In all the circumstances of this case, it is my view therefore that the failure to give such a warning cannot be said to have resulted in no miscarriage of justice.
I would therefore uphold the appeal on this ground. I would add only that it is unfortunate, in my view, that there is apparently no practice of videotaping, as a matter of routine, the taking of statements from children or vulnerable witnesses.
No doubt, if the entire procedure were videotaped, many of the matters recorded would be irrelevant and repetitive. I do not for a moment suggest that it would be either necessary or appropriate for the jury to see the entire procedure.
However, such a practice would obviously make it much easier for the Judge on a voir dire to form a view about the potential probative value of a written statement, and it might well be that, suitably edited, portions of the video could be shown to the jury. If that procedure were adopted, it might be in many cases unnecessary to give a warning of the type which I have described; alternatively, in circumstances where a warning was
considered to be necessary, it could be illustrated by reference to appropriate portions of the videotape.
Finally, I would add only that I do not intend by anything I have said in these reasons, to suggest that wherever the statement of a witness is admitted into evidence pursuant to s 106H, it will be necessary for a warning in particular form to be given. However, where the process of taking the statement which is ultimately admitted into evidence is not itself recorded, so that there is some dispute about it, or where the process is recorded and some issues appear to arise as to the witness' understanding of the need to tell the truth or as to the manner in which questions were asked, it will generally be appropriate to give a warning tailored to those circumstances.
Ground 1 - Admissibility of Evidence of the Silicone Oil
In relation to this issue, I am in agreement with the reasons of McKechnie J, and I have nothing to add to his Honour's observations.
Appeal Against Sentence
Because of the view which I have reached that the appeal should be allowed, conviction quashed, and a re-trial ordered, it is unnecessary to consider the issue of sentence.
MCKECHNIE J:
Ground 1 - Admissibility of evidence of the presence of silicone oil
At trial evidence was led from Dr P M Winterton that on post‑mortem examination of TR he found an oily mucusy substance in the anus.
The material was analysed by Mr D J Tranthim‑Fryer who gave evidence that the substance was silicone oil (polydimethylsiloxane) used in cosmetics, lotions, and as a lubricant in condoms. He was able to identify the oil as coming from a condom because of its purity. His opinion was that the silicone oil was consistent with being oil derived from a condom. Mr Tranthim‑Fryer referred to a technical paper, published in 2001, which reported on the analysis of 29 condoms; 26 of the 29 condoms contained silicone oil as a lubricant. He further analysed a Satin brand of condom found in the appellant's possession. It was coated in silicone oil. Silicone oil would remain in the anus for some time as it is not readily soluble in fat tissue or skin or bodily fluids.
The jury, in the trial before Fenbury DCJ, was able to hear that evidence because of an earlier ruling as to admissibility by Blaxell DCJ. The prosecution sought to introduce the evidence on the following basis:
"The crown would say the fact that upon post‑mortem silicone oil was found in the deceased's anus, it corroborates what the young boy says in terms of the type of sexual abuse committed upon his brother by the deceased. The problem with the crown's position, and it's acknowledged, is that in terms of timing the evidence would be that the oil would only have been there for a relatively short period of time."
After hearing submissions from both sides Blaxell DCJ ruled that the evidence was admissible. He said:
"… It is highly probative evidence. It is evidence which, if accepted, would inevitably lead the jury to conclude that there had been an act of anal penetration of the deceased complainant within a few days of his death. The jury could not conclude that that act of anal penetration was the offence alleged in count 4 of the indictment.
However, the evidence is nevertheless highly probative because it bolsters the credibility of the complainant [SR] when he states at page 20 of his statement that he saw 'rude things' happen to [TR] while he lived at nan's house. Obviously rude things other than the offences alleged in the indictment and that evidence therefore bolsters his credibility when he says that there were acts of sexual abuse and for that reason it is relevant to his credibility when he says that the offence the subject of count 4 did indeed occur. So for these reasons I rule that the evidence as to the presence of silicone oil is admissible."
At the trial Fenbury DCJ directed the jury on the evidence. He pointed out that the fact that the oil was there at death suggested that penetration was just before death and therefore could not have been related to the counts in the indictment against TR:
"… Therefore there's no evidence the silicone in the boy's anus - because it must have been left there just before death, because it was there on death, there's no evidence that it was left there by the accused. [SR] doesn't say that.
His evidence as to these matters is the only evidence. [SR] on his evidence speaks about an incident that occurred in 1997, the previous year, more than 6 months before death, if you like. So you cannot use the oil evidence - putting is shortly - the evidence of the silicone condom oil found in [TR]'s anus as evidence supporting [SR]'s allegations of what he saw his uncle do to [TR]. You cannot use it [the] support that allegation. The evidence does not go that far because of the timing of events.
However, the evidence of the silicone oil being found is led for a specific reason in the case and this is the only purpose for which the evidence can be used by you. Firstly, the evidence very strongly suggests, you may think it proves, together with the medical evidence that [TR] was sexually penetrated in the anus by a penis before his death - it proves that. The evidence is led to show that [SR's] account of these matters in his written statement, young though he may be and despite what he said or didn't say on video, might be true. In other words, the evidence answers any suggestion that young [SR] imagined things, made them up, fabricated his allegations.
…
Well, the evidence of the silicone oil simply means that the allegations of the complainant may not have been fabricated, made up or imagined, because the evidence proves that somebody did indeed sexually penetrate [TR's] anus with his penis before death and so the prosecution says it is possible it occurred previously, on the occasions [SR] speaks of being an eyewitness to. In other words, it's really led to answer any tendency you might have to dismiss what is alleged because it's just too unbelievable as an idea, if you like, as a possibility. That's the purpose of the evidence being led to you but it doesn't prove any - not led to prove any specific count in the indictment.
So boiling all that down, the evidence of the silicone oil is not led for, and cannot be used to support any particular count specifically with respect to [TR], that is, count 2 or count 4. It is led for a very limited and specific purpose which is, namely, as a support for the credibility and reliability of the young witness [SR] as a witness…"
This case had an unusual aspect because SR had made complaints of sexual abuse against not only the appellant but also his grandfather and one other person, a female, who was acquitted after a separate trial. The grandfather died of a heart attack in 2000 and never stood trial. There were then at least two persons who might have been responsible for the presence of silicone oil in TR's anus, one of whom was the appellant.
The appellant did not give evidence at trial but, through his counsel, conceded that the jury might have no difficulty in finding there had been a penetration of each of the two boys. The basis of the submission to the jury was:
"..it might come down to, has the crown proved that it was [RPM] who did these things or has the crown not proved that; was it someone else?"
SR had given evidence through his statement, the significance of which will be discussed later, that he had witnessed the appellant penetrate TR:
"…and then he put that plastic thing on his balls and then did it to [TR]."
Condoms had a special significance in the trial because the appellant had denied being in possession of condoms when questioned by police, yet a packet of condoms was found in a search of his premises. The prosecution asked the jury to treat the appellant's statement as a lie indicating consciousness of guilt.
It is against this background that the admissibility of the expert evidence falls to be examined.
"Corroboration" is defined in the time‑honoured words of the Court of Appeal in R v Baskerville (1916) 2 KB 658 delivered by Lord Reading CJ. After posing the question at 665:
"If the only independent evidence relates to an incident in the commission of the crime which does not connect the accused with it or if the only independent evidence relates to the identity of the accused without connecting him with the crime, is it corroborative evidence?"
The Court held at 667:
"We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it."
The prosecution conceded at trial there was no evidence linking the penetration shortly before TR's death with the appellant. It also concedes on appeal that the evidence is neither relationship evidence nor similar fact evidence. In view of the prosecution concession the expert evidence cannot be corroborative because it does not implicate the appellant in the commission of the crimes charged in the indictment.
The evidence was not, in any event, admitted for the purpose of corroboration and nor was the jury directed to that purpose. It was expressly admitted in order to bolster the credibility of the complainant. Evidence is often admitted in trials which has the effect of bolstering the credibility of a witness. The evidence may confirm one aspect of the witness's testimony. However, the evidence must, generally speaking, be also relevant to the matters in issue. An exception is the evidence, when available, of recent complaint of a sexual offence. Such evidence, coming directly from the complainant, is admitted as an exception to the general rule in order to buttress the credibility of the witness.
The case of R v Turner [1975] QB 834 does not, in my respectful opinion, lay down a broad rule excluding evidence which has the effect of buttressing the testimony of a witness. In Turner, the defence wished to call a psychiatrist to give opinion evidence based on information from medical records and hearsay that the defendant was not suffering from a mental illness, that he was not violent, and that his personality was such that he could have been provoked, and he was likely to be telling the truth. The Court of Appeal held that the psychiatrist's evidence was relevant but the relevance did not result in the evidence being admissible. It was a condition precedent to admissibility. A lot of the proposed evidence of the psychiatrist contained hearsay which was inadmissible. What I perceive to be the ratio decidendi of Turner is that the proposed evidence of the psychiatrist's opinion was as to matters within the knowledge and experience of the jury:
"Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life. It follows that the proposed evidence was not admissible to establish that the appellant was likely to have been provoked. The same reasoning applies to its suggested admissibility on the issue of credibility. The jury had to decide what reliance they could put on the appellant's evidence."
I do not consider that Turner lays down a general principle for exclusion of evidence because it bolsters the credibility of a witness. Rather, I consider the principle is that evidence may be led which has the effect of bolstering the credibility of a witness provided that the evidence is in admissible form and is relevant to proof of a fact or matter in issue. Murphy v The Queen (1988) 167 CLR 94 is an example of such a case. Mason CJ and Toohey J noted that the remarks of Lawton LJ which I have quoted "may not be so unquestionable".
In the present case, the fact that TR may have been penetrated shortly before death by a person wearing a condom did not bolster the credibility of SR in his evidence that he had witnessed TR being penetrated by the appellant on prior occasions. This is because there was no evidence linking the appellant with any act of penetration with a condom shortly prior to TR's death. As is implicit from the prosecution concession, an inference could not be drawn against the appellant because of the presence of an equally available inference against the grandfather.
The expert evidence was not admissible because it was not relevant to any matter in issue. If the evidence had been corroborative, that is, if it had implicated the appellant in the commission of the offence, then it would have been admissible. The fact that it would also have bolstered SR's credibility would not have prevented its admissibility.
On appeal the prosecution argued that the evidence was probative "as it confirmed the mechanism by which the complainant said the appellant penetrated his brother's anus". Therein lies the difficulty. In the absence of any evidence linking the appellant with any act of penetration with a condom shortly prior to TR's death the expert evidence confirmed nothing.
In consequence, ground 1 is made out. The jury heard inadmissible evidence. In view of the important role condoms played in the trial, the expert evidence was dangerous and its admission led to a real likelihood of a substantial miscarriage of justice.
I would allow the appeal on ground 1.
The exercise of the discretion to admit the statement: Ground 5
The Evidence Act was amended in 1992 by the Acts Amendment (Evidence of Children and Others) Act 1992. The amendments were remedial in nature. They altered the common law and altered the previous statutory regime for taking the evidence of children. The Evidence Act should be read with the clear parliamentary intention in mind. The intention was to widen the circumstances in which the statements of children about sexual abuse could be heard by a court.
The admissibility of a child's statement in the Sch 7 procedure is subject to conditions which were met in this case. The appellant was given:
•a copy of the written statement;
•the opportunity to cross‑examine the affected child;
•the evidence of the making and the content of the affected child's statement given by the person to whom the statement was made.
These are pre‑conditions of the exercise of the judicial discretion whether to admit the statement into evidence. Parliament has not defined the factors relevant to the exercise of the discretion and in my opinion it would be unwise for this Court to fetter that discretion. The particulars to the ground of appeal suggest a fetter on the discretion:
"(a)The Learned Trial had found that the complainant was capable of being sworn and that he was capable of giving an intelligible account of the events the subject of the indictment.
(b)The complainant was given adequate opportunity to give an account of the events the subject of the indictment.
(c)The complainant was prompted to remember the incidents the subject of the indictment but gave no evidence of any of the alleged offences.
(d)The account of the events in question given to the police officers was not videotaped.
(e)There is no record of the specific questions asked of the complainant by the police officers which resulted in the statement."
Those matters might inform the exercise of the discretion but are not decisive of it. In exercising the discretion to admit however, a judge should bear in mind the over‑arching discretion in a trial judge to exclude evidence, the slight probative value of which is so outweighed by its prejudicial effect as to render its admission unfair to the accused, or evidence which, on other grounds, may be seen as affecting the fairness of the trial.
In the present case, the issue came before Murray J sitting as a Commissioner of the Court on 17 December 2001. He discussed the discretion:
"…it seems to me that the court's discretion to be exercised in relation to a ruling about that is to be exercised having regard to circumstances concerned with the making of the statement and whether or not it may have a probative value, having regard to those matters and the sort of considerations which by this part of the Evidence Act apply to the admission into evidence of the evidence of children generally."
With respect, I agree.
Murray J noted that, once admissible, the defendant is to be given the opportunity to cross‑examine the affected child but there remained, preserved to the trial Judge, the need to deal with objections raised on other grounds of admissibility not related to the statutory circumstances or the process in which the statement had been obtained. After hearing the evidence concerning the circumstances under which the statement had been obtained, Murray J held that the statement was admissible. He noted specifically the assertive nature of SR's mother in the record of interview which had been videotaped and that he would have been gravely concerned that the behaviour during the course of that videoed interview might have tainted not only what followed in the course of that interview but taint what would follow in the course of a subsequent interview. However, he accepted Police Officer Randall's evidence that the behaviour recorded on the video had not been present when she had taken the written statement earlier over a three day period. That was a matter of fact for Murray J and it has not been demonstrated that his finding was wrong. The Judge specifically considered the probative value of the statement but considered there was nothing which would make it unfair to exercise his discretion to refuse the admissibility of the statement.
On an earlier occasion, LA Jackson DCJ had found the complainant capable of being sworn and the complainant was given adequate opportunity to make an account of the events before becoming unresponsive. This is not to the point. The Evidence Act s 106H is remedial and should not be read down so as to exclude the admission of statements because the child is capable of giving sworn evidence. In the event, the appellant was able, through counsel, to cross‑examine the complainant on the contents of the statement.
Having regard to the findings of fact, which are not challenged by the ground of appeal, I do not consider the Judge erred in the exercise of the discretion to allow the statement to become admissible in the trial and I do not consider there was any miscarriage in that course. However, I conclude this section with the following observation.
The interests of justice will be enhanced if, where possible, the circumstances under which a s 106H statement is obtained are video‑recorded.
When, as here, questions arise as to the admissibility of a s 106H statement, the best evidence of the way in which the statement was obtained is likely to be a video‑record. The video may well be lengthy and filled with immaterial matters - that is the way in which statements from children, especially about sexual matters, often evolve. The s 106H statement may appropriately be the distillation of the interview into its relevant components. However, if the whole procedure is videotaped, the Court, and the accused, are provided with an accurate record.
In the past 15 years, the Police Service has gradually come to embrace the video‑record of interview for taking statements from suspects.
More recently, and as a result of comments from this Court, police are increasing the use of the video to record the identification of suspects by witnesses from photoboards.
The reasoning behind the use of videos in these situations applies with equal rigor to the taking of Evidence Act s 106H statements from children. The video is likely to offer the most reliable evidence of the circumstances.
Should a warning have been given to the jury?
Ground 6 asserts in effect that Fenbury DCJ ought to have given warnings to the jury in the following terms:
"(a)directed the jury that the evidence of the complainant in that regard was not taken on oath and they should take that in to account in assessing the evidence; and
(b)warned the jury that it would be dangerous to convict the applicant on the basis of that unsworn statement of the complainant unless they were satisfied beyond reasonable doubt as to its truth and accuracy.
(c)failed to adequately warn the jury about the danger of convicting the applicant on the complainant's evidence."
Fenbury DCJ specifically declined to warn the jury that the evidence was not on oath and that they should take that into account in assessing SR's evidence. I consider he was right to do so.
The "Evidence of children and special witnesses" part of the Evidence Act does not differentiate between sworn evidence under s 106B, unsworn evidence under s 106C, and statements under s 106H.
The position may be contrasted with the earlier part of the Evidence Act headed "Mode of taking evidence". Section 97 is headed "Evidence is to be on oath except in some cases" but provides an exception by s 1(a) "a witness the evidence of whom may be received pursuant to this Act though not given on oath". This reference includes evidence under s 106H. Section 99 provides for an affirmation in lieu of an oath. Section 100A allows an oath to be dispensed with if the person who is tendered as a witness does not understand the nature of, or obligation imposed by, an oath but does understand that he is required to speak the truth and, to tell what he knows about the matter to which the testimony relates and that he will be liable to punishment if he does not do so. The evidence may then be received without an oath and without any formality. However, in such circumstances by s 100A(2):
"In taking into account the weight and credibility that ought to be afforded to testimony given by a witness otherwise than on oath or solemn affirmation regard shall be had to the manner and circumstances in which it is given and received and to the fact that it was given without the sanction of an oath or solemn affirmation."
Clearly, in such a case, a judge has an obligation to direct the jury accordingly.
The issue which arises is whether the Evidence Act s 100A(2), which governs the evidence of children and special witnesses, is of general application and governs the evidence of children and special witnesses, or whether the evidence of children and special witnesses is governed by what is effectively a code in respect of children's evidence. If s 100A does govern the position then the Judge was required to give a direction to the jury in terms of s 100A(2).
In my opinion, s 100A does not govern evidence of children and special witnesses. I consider the Parliament intended the sections within that division to be in terms a code for the taking of evidence of children. Section 106C lays down a different standard for admission of evidence to s 100A. The Court is required to form an opinion, before the evidence is given, that the child is able to give an intelligible account of events which he or she has observed or witnessed.
The standard of satisfaction of the Court under s 106B is also different from the standard in s 100A. In the present case, the jury was aware of the circumstances in which the statement was taken because Constable Randall gave evidence at the trial as to those circumstances and was cross‑examined. The evidence‑in‑chief, where SR did not give incriminating evidence, was before the jury as was the cross‑examination. The jury was able to observe the youth of SR and knew of his younger age at the time of the offences. I do not consider that an obligation arose on the Judge to direct the jury to take account of the fact that the evidence was not on oath.
I have had the advantage of reading Wheeler J's judgment on this point. I agree that there may be circumstances where a warning along the lines she expresses may well be appropriate. It is a counsel of prudence for a judge to consider the need for a warning in all cases where the failure to give a warning may create a perceptible risk of a miscarriage of justice.
I differ, with respect, from Wheeler J only in my assessment that, in this case, the lack of a warning did not give rise to a miscarriage of justice.
It was obvious to the jury that it did not have the benefit of seeing SR make the statement or directly giving the evidence. However, the jury could judge the demeanour of the witness from the video of his examination‑in‑chief, until the point it was discontinued, and his cross‑examination on the statement at a later time. They also could weigh Constable Randall's evidence. The statement was read to the jury by the prosecutor and subsequently, in response to a question from the them, parts were re‑read. The statement did not go into the jury room so the concerns expressed in Butera v DPP (Vic) (1987) 164 CLR 180 and Driscoll v The Queen (1977) 137 CLR 517 do not arise.
A warning would not have told the jury anything beyond normal experience. There were no extra hidden dangers about which a court would know and a jury may not appreciate.
In my opinion, the course followed did not give rise to any miscarriage of justice. The events did not occur a long period before the statement was taken. Nor did the circumstances of the offences, which occurred during waking hours, give rise to any aspects of fantasy. Significantly, although it was a matter for the prosecution to prove, the defence did not really contest that SR and TR had been sexually abused.
The Judge did say to the jury in the course of explaining that corroboration was not required:
"…you are able, if you see fit, to act on the evidence of the young witness alone if you're convinced beyond reasonable doubt that in terms of its essential parts it's truthful and accurate. I'm not saying that you should or that you should not. I'm just simply saying that you can, if you're satisfied beyond reasonable doubt to the required degree that it's truthful and accurate."
The Judge said:
"Parliament also recognises that the young can have special difficulties in these matters, not only because they are young but when the person accused is a close relative, like an uncle, or where the accused person is in the same household as the complainant. There were periods of course when that situation existed here. So there is this other section in the Evidence Act, similar to the video section that I've described, where a judge is allowed, if he or she thinks fit, to permit the written statement of a child witness taken by investigating police to be read out to the court, but it's only for children under 16 and, as I say, the procedure is only permitted because - and it has been set up by parliament - child witnesses notoriously have difficulty in dealing with legal aspects of these matters, as I have mentioned, especially in talking about them, giving oral evidence about them, more especially when the accused is a close relative and living in the same household or spending time in the same household. So is it a normal procedure which occurs when the problem arises that clearly arose in this case.
As I say, it's parliament's way of solving the problem that sometimes arises in these matters, that is, the problem of getting the evidence before a jury for their consideration. That's all I want to say about that aspect."
I am inclined to think that the reference to "normal procedure" was unfortunate. However, I do not consider the Judge's direction led to a miscarriage of justice. His summary was, with respect, accurate.
For the reasons previously expressed, I consider that Parliament's intention in rendering s 106H statements admissible was to accord them the same evidential effect as sworn evidence.
I do not consider that the trial miscarried by reason of the Judge's failure to give the directions asserted in ground 6.
Ground 7
This ground asserts that the convictions were unsafe and unsatisfactory and gives particulars. It may be briefly disposed of. There was significant medical corroboration that both SR and TR had been abused by penetration of their anuses over a period of time. It was open for the jury, in considering the whole of SR's evidence, to reach the conclusion that the account given in his s 106H statement, and essentially confirmed in his cross‑examination, in fact represented the truth. Although SR said that he did not know what the appellant inserted into his anus, on the whole of the evidence the inference was available that it was the appellant's penis. The fact that there was a time lapse between the incidents and the report to the police was obvious to the jury and it was a matter for them to take it into account. Following an independent review of the evidence required by Jones v The Queen (1997) 191 CLR 439, I consider it was open for the jury to convict the appellant.
Conclusion
There was an error of law in the wrongful admission of the expert evidence as to the finding of silicone oil in TR's anus on post‑mortem examination which caused a substantial miscarriage of justice. I would therefore allow the appeal and quash the conviction. In view of my conclusion as to ground 7, I would order a retrial.
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