Sears v The Queen

Case [2020] SASCFC 107

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

SEARS v THE QUEEN

[2020] SASCFC 107

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Nicholson)

13 November 2020

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

Appeal against conviction.

The applicant was found guilty of one count of sexual exploitation of a child, LF, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA), following a trial by Judge alone.

LF participated in three audio visual interviews on 19 December 2015, 3 April 2016 and 2 March 2017 when she was respectively aged eight years and two months, eight years and six months and nine years and five months. When she later gave evidence at trial she was aged nine years and six months. LF’s evidence included the audio visual interviews adduced pursuant to s 13BA of the Evidence Act 1929 (SA), which, to be admissible, were required to have been conducted pursuant to Part 17, Division 3 of the Summary Offences Act 1953 (SA). The first two interviews had been conducted by a police officer who was a “prescribed interviewer” by operation of the Summary Offences Regulations 2016 (SA) reg 20(1)(a). The third interview was conducted by Ms Elliott, a social worker employed at Child Protection Services and was received into evidence under reg 20(1)(c).

During the trial, it came to light Ms Elliott had not been a prescribed interviewer at the relevant time, such that the third interview was not admissible pursuant to s 13BA. Defence counsel applied for a mistrial on the basis that the Judge’s consideration of the case had been compromised by the introduction of the evidence that was inadmissible against, and prejudicial to, the applicant. The Judge rejected the application and decided to continue to hear the trial on the basis that the third interview was to be excluded, as was the other evidence presented at trial that was “contaminated” by reception of the third interview, and that he could put out of his mind all of that evidence. The Judge found the applicant guilty of the charge (as amended).

The applicant now seeks permission to appeal against his conviction and applies for an extension of time.

Held per Peek J (Blue and Nicholson JJ agreeing) granting the required extension of time; allowing the appeal and setting aside the conviction; and ordering that the Information (not including the particulars upon which the applicant was acquitted at trial) be re-tried in the District Court.

Held per Peek J:

1. The approach taken…

Continue reading Sears v The Queen

Sign in free to access the full text

Details
AGLC
Sears v The Queen [2020] SASCFC 107
Case
[2020] SASCFC 107
Decision Date

CaseChat Overview and Summary

The applicant, Sears, was convicted by a judge alone of persistent sexual exploitation of a child contrary to section 50(1) of the *Criminal Law Consolidation Act 1935* (SA). The alleged offences occurred between October 2010 and December 2015, involving a complainant, LF, who was under 17 years of age at the time of the acts and under 10 years of age at the time of trial. The appeal concerned the admissibility of audio-visual recordings of interviews with LF, adduced pursuant to section 13BA of the *Evidence Act 1929* (SA), and the subsequent directions given by the trial judge.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the admission of the audio-visual recordings was lawful, and if not, whether the trial judge's directions to himself, as the judge of fact, were sufficient to overcome the prejudice arising from the inadmissible evidence. Specifically, the court considered whether a serious breach of statutory procedure had occurred in the admission of the evidence, and whether, in a trial by judge alone, a judge could be expected to disregard inadmissible and highly prejudicial evidence in the same way a jury might be directed to do.

The Court found that a serious breach of statutory procedure had occurred concerning the qualifications of one of the interviewers involved in recording the complainant's evidence. This breach was not a mere technicality but went to the fundamental integrity of the evidence admitted. The Court distinguished this case from others where alleged procedural breaches were not upheld, noting that here the breach of a statutory condition was undeniable. The Court held that the admission of inadmissible evidence, particularly in a trial by judge alone, could still constitute a miscarriage of justice if it departed from the essential requirements of a fair trial, even if the judge was directed to ignore it. The Court emphasised that the right of an accused is to have inadmissible evidence excluded, not admitted and then disregarded.

The Court allowed the appeal, quashing the conviction. The reasoning was that the admission of the inadmissible evidence, despite the trial judge's directions to himself, meant that the applicant had not had a trial according to law. The Court reiterated that the concept of a miscarriage of justice is broad and encompasses failures of process that prevent an appellate court from determining whether a conviction is just or that depart from the essential requirements of a fair trial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant was found guilty of one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA), following a trial by Judge alone. The Information charged that over a period of not less than three days, between 29 October 2010 and 14 December 2015, the applicant had committed more than one act of sexual exploitation of the complainant, LF, a person under the age of 17 years, by:(a) attempting to kiss her on the mouth on more than one occasion;(b) causing her to watch pornography on more than one occasion;(c) causing her to touch his penis on more than one occasion;(d) rubbing his body on her body on more than one occasion;(e) inserting his penis into her vagina on more than one occasion;(f) touching her vagina on more than one occasion; (g) inserting his penis into her anus on more than one occasion;(h) inserting his finger into her anus on more than one occasion;(i) licking her vagina on more than one occasion;(j) causing her to put her mouth on his penis on more than one occasion; and (k) kissing her on the mouth.The evidence of the complainant LF The child complainant, LF, was born on 29 September 2007. The subject acts were alleged to have occurred when she was between about four to eight years of age. As is considered below, she participated in three audio visual interviews on 19 December 2015, 3 April 2016 and 2 March 2017 when she was respectively aged eight years and two months, eight years and six months and nine years and five months. At the time when she later gave evidence at trial she was aged nine years and six months. LF’s evidence included the audio visual records of three interviews which were adduced pursuant to s 13BA of the Evidence Act 1929 (the Act), together with oral evidence at trial. Section 13BA provides as follows:13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings(1)Subject to this section, the court may, in the trial of a charge of an offence order that the evidence of a witness be admitted in the form of an audio visual record.(2)An application for an order under subsection (1) must—(a) be made in writing by the party wishing to have the audio visual record of the evidence admitted in the trial; and(b) be filed in the court; and(c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and(d) otherwise be made in accordance with the rules of court.(3)An audio visual record of the evidence of a witness may be admitted under this section if—(a) the recording has been made pursuant to—(i)section 12AB; or(ii)Part 17 Division 3 of the Summary Offences Act 1953; and(b) the court is satisfied as to the witness’s capacity to give sworn or unsworn evidence at the time the recording was made; and(c) the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and(d) during the course of the trial, the witness is available, if required, for further examination, cross‑examination or re‑examination.(4)The court’s discretion to exclude evidence is not affected by subsection (3) and the court may—(a) rule as inadmissible the whole or any part of the recording; or (b) before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.(5)Despite subsection (3)(d), the witness cannot be further examined, cross‑examined or re‑examined on the evidence admitted in the trial without the permission of the court which may only be given, on application by a party to the proceedings—(a) if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or(b) if the witness gives evidence in the trial apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross‑examined or re‑examined; or(c) if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross‑examined or re‑examined.(6)If a court admits evidence in the form of an audio visual record under this section, the judge must—(a) explain to the jury that the law allows the court to admit evidence in this form; and(b) warn the jury—(i)not to draw from the admission of evidence in that form any inference adverse to the defendant; and(ii)not to allow the admission of evidence in that form to influence the weight to be given to the evidence.

Decision

Reasons for decision

Finally, I emphasise the well-known words of Gleeson CJ in Nudd v The Queen:[19]7. The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial. [Emphasis added] [19] (2006) 80 ALJR 614.Some relevant South Australian decisions In 2012, in The Queen v J, AP,[20] this Court emphasised the degree of loss of the traditional rights of a person accused of a criminal offence of the present type:[21][20] (2012) 113 SASR 529.[21] Ibid 548 (Peek J).72. The cumulative effect of some of the legislative changes to the common law system for trying a person for a serious criminal offence as they apply in the present case may be broadly stated thus: 1 A video recording may be made of a child being questioned in the absence of the accused about the alleged conduct of the accused no matter how long after the conduct is alleged to have taken place.2 There is no requirement to inform the accused of an intention to interview the child or to give him an opportunity to suggest lines of inquiry or any questions that should be put to the child as part of the process or to give him an opportunity to have a representative to be present and observe the process.3 Such a video recording may be tendered in evidence and may by itself be sufficient to ground a conviction.4 Even though a video recorded interview is received, the prosecutor may lead such evidence-in-chief as he or she chooses.5 On the other hand, the accused may not cross-examine the complainant except insofar as he or she is able to secure advance approval of the trial judge to the questions wished to be put in cross-examination.6 The complainant if giving evidence may do so without being sworn even though it is clear that the complainant does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.7 There is no requirement that such unsworn evidence be corroborated.8 If giving evidence, the complainant may give evidence from a different room via a CCTV system. (This is a procedure that may be adopted in other cases apart from those in which a recorded statement is tendered but such procedure will almost inevitably be adopted in such a case and was so adopted in the present case.) The Court allowed the appeal on the basis that the statutory requirement for the Judge to give certain jury directions in a case involving the giving of recorded evidence by a complainant had not been complied with. It was stated:[22]73. It is in the context of the above changes that the law provides a system of checks and balances designed to safeguard against the risk of wrongful conviction. This system consists of statutory warnings required by the Act together with existing requirements at common law for jury directions.…88. First, a jury may only convict of a charge if satisfied beyond reasonable doubt and this level of proof does not vary according to the type of offence charged. Just because a charge of child sexual abuse is involved does not mean that the statements of the child carry greater weight than evidence in other cases; it is not the case that a jury may accept the evidence of a child as proof beyond reasonable doubt just because it is the only evidence that can be placed before them. Rather, the same test applies to all cases of whatever type: does the evidence actually adduced prove the charge beyond reasonable doubt? 89. Against that background, the judge was required to inform the jury that the complainant at her present age of eight years did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. Such a direction may have the effect of concentrating the jury’s consideration of the important issue of the weight to be given to a recording of statements made by the complainant when she was younger and less — not more — mentally developed. Thus the direction had considerable relevance in relation to the video recordings and not just E’s evidence in court. It required the jury to face up to the true question before them: did the out of court statements of a child who, at the time of making them, would have had less understanding of the obligation to be truthful entailed in giving sworn evidence than the insufficient understanding she had at trial, provide a sufficiently firm basis for a finding of guilt beyond reasonable doubt? …120. The appellant had a fundamental right to have the jury assess the strength of the evidence against him in the light of a correct direction and warning under s 9(4)(a) and (b) respectively. The judge’s failure to give such correct direction and warning was not only a clear error of law but it went to the very structure of the trial. We are here concerned with the fundamental way in which evidence may be received and upon what conditions — here as stipulated in mandatory legislation regulating the conduct of the trial itself. [Emphasis added] [22] (2012) 113 SASR 529, 548, 550-551, 557.

Ratio Decidendi

Legal Principle Established

It is important to note that the present case falls into the class of R v Starrett and other cases referred to above, where the breach of a statutory condition is undeniable. It is quite different to the class exemplified by cases such as R v Sparks and The Queen v K, GA where, although it was alleged that a condition precedent to admissibility had not been fulfilled, such contention was rejected by the appeal Court.Consideration As was specifically noted in R v Starrett, the accused does not have to show that a different result may have occurred if the correct procedure had been carried out; rather, it is sufficient to demonstrate that a serious breach of the procedure required by statute had occurred. In the present case, the error is rather worse than in R v Starrett, where the evidence was given in Court in the usual way of evidence in chief andcross-examination and the problem was almost a “technical” one. Here, the evidence in chief was given by way of pre-trial recordings of talks between persons acting at the behest of the police (and who were not lawyers) and the complainant, in the absence of the accused. This is a most radical change to the traditional rights of an accused person. What safeguards there are need to be stringently adhered to and the error here happened to go to the very heart of the matter – the qualifications required of one of the persons conducting an interview with the child. There is no doubt (and the prosecution correctly accepts) that if the present case had been a trial by jury, and the jury had convicted after receiving directions by the Judge to ignore the inadmissible evidence in the same terms as his Honour had directed himself, such verdict would be set aside by this Court on the basis that the defendant had not had a trial according to law. That would be because the “right” that the defendant had was a right to have inadmissible evidence excluded, as distinct from such evidence being admitted and then later withdrawn, accompanied by a judicial direction to the jury to ignore the highly prejudicial material they had listened to closely. Why is the position said to be different if the trial is by Judge alone? The prosecution assert that it is different because a jury would not have the mental capacity to act upon such directions, whereas a Judge sitting alone does have such capacity. In my view, that response misses the point for several reasons. The first reason is that while in some situations it is reasonable to expect a Judge to put something out of his or her mind, it is always preferable that such a procedure be avoided if at all possible. Thus, in a criminal trial by Judge alone, it is usually appropriate that the Judge not read the depositions so as to avoid a process of subsequently having to ignore the material that is not led at trial. And in a civil trial, the Judge is not informed of offers to settle made by the parties so as to avoid the very difficult task of ignoring that information.