Sears v The Queen
[2020] SASCFC 107
•13 November 2020
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 in R v Starrett (2002) 82 SASR 115 of concentration upon fundamental departure from proper procedures is correct. Evidence Act 1929 (SA) s 13BA referred to. Johnson v Miller (1937) 59 CLR 467; Katsuno v The Queen (1999) 199 CLR 40; Maher v The Queen (1987) 163 CLR 221; Nudd v The Queen (2006) 80 ALJR 614; R v Cheng [2015] SASCFC 189; R v Cronin (2018) 131 SASR 111; R v Lucky (1974) 12 SASR 136; R v Sparks [2017] SASCFC 171; R v Starrett (2002) 82 SASR 115; Roger Johns v The Queen (1979) 141 CLR 409; The Queen v B, AM (2015) 124 SASR 176; The Queen v J, AP (2012) 113 SASR 529; The Queen v K, GA [2019] SASCFC 2; Wilde v The Queen (1988) 164 CLR 365 discussed.
2. 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 possible.
3. The question of whether the accused has had a trial according to law amounts to an inquiry as to whether statutory conditions precedent have been complied with, and not whether a jury or Judge could put out of their minds evidence received in breach of such requirement. In the present circumstances, a trial by Judge alone, wherein none of the third interview is led, would be significantly different from a trial in which the whole of the third interview is led with the Judge later directing himself to ignore it. Thus, the applicant did not have a trial according to law. R v Starrett (2002) 82 SASR 115 considered.
4. There has been a clear breach of a fundamental common law or statutory right of the accused and in such cases the common form proviso cannot be applied.
Held per Blue and Nicholson JJ:
1. It is not necessary to finally determine whether the process undertaken by the trial Judge gave rise to such a fundamental failure of criminal process that the proviso could have no application.
2. This is not a case where the proviso could be applied. It was simply not possible for the trial Judge to have completely excluded the third interview from his consideration. It must have contributed, whether consciously or subconsciously, to the generation or reinforcement of a (provisional) view as to the complainant’s credibility.
Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) s 13BA; Summary Offences Act 1953 (SA) s 74EB; Summary Offences Regulations 2016 (SA) reg 20; Supreme Court Criminal Rules 2014 (SA) r 44, 120, referred to.
Johnson v Miller (1937) 59 CLR 467; Katsuno v The Queen (1999) 199 CLR 40; Maher v The Queen (1987) 163 CLR 221; Nudd v The Queen (2006) 80 ALJR 614; R v Cheng [2015] SASCFC 189; R v Cronin (2018) 131 SASR 111; R v Lucky (1974) 12 SASR 136; R v Sears [2018] SADC 94; R v Sparks [2017] SASCFC 171; R v Starrett (2002) 82 SASR 115; Roger Johns v The Queen (1979) 141 CLR 409; The Queen v B, AM (2015) 124 SASR 176; The Queen v J, AP (2012) 113 SASR 529; The Queen v K, GA [2019] SASCFC 2; Wilde v The Queen (1988) 164 CLR 365, discussed.
SEARS v THE QUEEN
[2020] SASCFC 107Court of Criminal Appeal: Peek, Blue and Nicholson JJ
PEEK J: Appeal against conviction of persistent sexual exploitation of a child.
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.
Relevantly, for the interviews to have been admissible under s 13BA of the Act, they were required to have been conducted pursuant to Part 17, Division 3 of the Summary Offences Act 1953 (SA). Section 74EB of that Act, which falls within that Division, imposes an obligation to record interviews with certain vulnerable witnesses. Subsection 74EB(b) requires the interview to be conducted by a prescribed interviewer. Regulation 20 of the Summary Offences Regulations 2016 (SA) defines “prescribed interviewers” for this purpose.
In this case, the first two interviews had been conducted by a police officer, who was a prescribed interviewer by operation of reg 20(1)(a). However, the third interview was conducted by a Ms Elliott, a social worker employed at Child Protection Services, and was received into evidence on the asserted basis that she was a prescribed interviewer under reg 20(1)(c). However, during the trial it came to light that she had not been a prescribed interviewer at the relevant time, and that the third interview was not admissible pursuant to s 13BA.
The course of the trial
The trial commenced on 18 April 2017, before a District Court Judge sitting alone. On 24 April 2017, the prosecution case was closed. The applicant elected to give evidence. His evidence in chief commenced and occupied some 40 pages of transcript when, on 26 April 2017, the trial was adjourned due to the applicant being unwell. When the trial ultimately resumed on 11 September 2017, examination in chief resumed and took a further 17 pages, with cross-examination then occupying some 64 pages.
On 1 September 2017, the prosecutor made an application for directions because she had just become aware that Ms Elliott had not been a prescribed interviewer at the time of the third interview. On 6 September 2017, defence counsel applied for a mistrial on the basis that the trial Judge’s consideration of the case had been compromised by the introduction of evidence that was inadmissible against, and prejudicial to, the applicant.
The Judge rejected the application and decided that he would continue to hear the trial on the basis of the making of the following rulings. First, that the third interview was inadmissible and was to be excluded, as was other evidence presented at trial that was “contaminated” by the reception of the third interview. Secondly, his Honour ruled that there was no case to answer in respect of the allegations in paragraphs (i) and (j) of the Information which solely relied on allegations made in the third interview. Thirdly, his Honour ruled that there was also no case to answer in respect of the allegations in paragraph (k) on the basis that although they were made in the second (admissible) interview, they were supported by the second witness statement of her grandmother, CD, which was made in response to a question that had been asked only because of something that LF had said in the third interview.
The Judge also held that the further evidence that was contaminated by the third interview could be comprehensively identified as:
-the allegations particularised in (i) and (j);
-cross-examination in relation to those particulars;
-cross-examination in relation to an allegation that the applicant had asked LF to urinate in his mouth;
-a specific allegation made in the third interview that the applicant had put his finger in LF’s bottom at her fourth birthday party;
-a specific allegation in the third interview that LF had been sexually abused at Wallaroo;
-specific sexual acts that LF had alleged in the third interview had occurred at Maslin Beach (although general allegations of abuse at that place had been made in the second interview); and
-evidence of a police investigator, in response to a question from the Judge, that the pornography that she viewed from the applicant’s home did not include images of urination or urination into the mouths of others.
The Judge stated that he could put out of his mind all of the aspects of the evidence referred to above and held that the interests of justice required that the application be refused. Accordingly, the trial continued. On 12 September 2017, counsel delivered their closing addresses and judgment was reserved. On 7 September 2018, just under a year from reservation of judgment (and about one year and five months since the giving of evidence by LF), the Judge found the applicant guilty of the charge (as amended) and delivered extensive reasons for doing so.
The application for permission to appeal
In his Notice of Appeal, the applicant seeks permission to appeal against his conviction and applied for an extension of time. The grounds of appeal are as follows:
1.The Learned Trial Judge erred in continuing to hear and determine the trial when, at the near conclusion of the appellants [sic] evidence in chief, it came to light that there had been a failure to comply with procedural requirements stipulated in sections 13BA of the Evidence Act and 74EB of the Summary Offences Act in relation to the complainant’s third recorded interview which rendered that interview inadmissible.
2.The Learned Trial Judge erred in refusing to declare a mistrial on the application of counsel for the appellant after ruling the abovementioned third record of interview inadmissible.
When this case was first called on for hearing on 22 July 2020, it was indicated to the parties that the Court required written submissions on whether the course of the trial was fundamentally flawed such that a fair trial according to law had not occurred, and referred the parties to authorities such as R v Starrett,[1] a previous decision of this Court. The Court adjourned the hearing to a new date on the basis that the parties would provide written submissions in the interim.
[1] (2002) 82 SASR 115. This decision had not been referred to in the written submissions or the list of authorities of either party.
On 1 October 2020, the hearing resumed. The Court called upon counsel for the prosecution to make submissions first. Prosecution counsel relied upon the written submissions that had been filed and made further oral submissions opposing the course of allowing the appeal. Mr Vadasz, counsel for the defence, was not called upon to present substantive argument.[2]
[2] The prosecution had submitted in writing that if the appeal were allowed, and a re-trial were ordered, it would not there seek to lead evidence of the third interview despite the fact that a recent amendment to the legislation might make that course possible. At the conclusion of the prosecution address, the Court inquired of Mr Vadasz whether, in the light of that prosecution concession, he wished to make any submissions concerning whether there should be an order for a re-trial or for judgment of acquittal. He stated that he did not and the Court thereupon reserved judgment and adjourned sine die.
The correct approach to breaches of s 13BA and its predecessors
In 1974 in R v Lucky,[3] Bray CJ was directly addressing reports by probation officers, psychiatrists and others, but his remarks obviously apply a fortiori to evidence directly incriminatory of the subject offence. His Honour stated:[4]
… It is of crucial importance that nothing should be taken into account against a convicted defendant except what he admits or what is proved against him by sworn evidence which he has had a chance to test by cross-examination. Any report of the kind mentioned should always be shown to him and he should be asked whether he admits its contents in so far as it relates to matters of fact and what comment he has to make on it. If he disputes any matter of fact alleged in the report, then either that matter must be disregarded by the court or the question must be resolved by the calling of evidence. Similar remarks apply to the police report and the list of previous convictions which accompanies it. Even opinion evidence from experts should not be used against a convicted person if he objects to it without the expert being called: and opinion evidence based on hearsay information obtained in his absence is not evidence against him except by consent … [Citations omitted]
[3] (1974) 12 SASR 136 (Bray CJ, Hogarth and Zelling JJ).
[4] Ibid 139 (Bray CJ, Hogarth and Zelling JJ).
I will briefly refer, in chronological order, to some previous decisions relevant to the correct approach to breaches of s 13BA and its predecessors.
In 2002, in R v Starrett, the appellant was charged with substantive sexual offences against a young child who was seven years old at the time of the alleged offending and eight years old at trial. At a trial by Judge alone, the complainant was permitted to give unsworn evidence without the Judge complying with certain procedures required by the Act. On appeal to this Court, Doyle CJ (Perry J agreeing) stated:[5]
15. The legislative provisions found in s 9 cannot be dismissed as mere matters of form. Parliament has made it plain that evidence is to be given on oath, unless the presumption that the witness is capable of giving sworn evidence is rebutted. Parliament has also made it plain that appropriate inquiries are to be made before a decision is made as to whether evidence is given sworn or unsworn. The history of this legislation and of the approach of the courts to these issues makes it plain that these are important matters in our system of trial.
…
24. What is the consequence of the error in permitting J to give her evidence unsworn?
25. By s 7(4) of the Juries Act 1927 (SA) the judge’s decision on the question of guilt “will, for all purposes, have the same effect as a verdict of a jury”. The judge’s verdict of guilt rests on the acceptance of the evidence of J, given unsworn as a result of a failure to comply with the requirements of s 9 of the Act. The circumstances of the case were such that it is possible that J’s evidence might have been given unsworn, if the correct procedure were followed, but in the particular circumstances the giving of the evidence unsworn reflected a substantial irregularity.
26. What effect does that irregularity have on the verdict? The power of this Court to interfere on appeal with a verdict includes the power to set aside a verdict if “on any ground there was a miscarriage of justice”: s 353(1) of the Criminal Law Consolidation Act 1935 (SA). That appears to me to be the relevant ground in the present case.
27. Has there been a miscarriage of justice? There is no reason to think that the judge’s decision to accept J’s evidence turned on the fact that it was unsworn rather than sworn, or to think that the irregularity affected the outcome of the case. On the other hand, I regard the irregularity as a substantial one.
28. Such authority as there is suggests to me that this is an irregularity that gives rise to a miscarriage of justice. The trial was not conducted according to law. The appellant was entitled to such a trial. The departure from the requirements of the law is not a trifling one, nor is it a departure on a matter that can be regarded as a mere matter of form.
… [Emphasis added]
[5] R v Starrett (2002) 82 SASR 115, 119-121.
His Honour then referred to authorities and concluded:[6]
32. Guided by that authority, I conclude that the irregularity is a substantial one. It gives rise to a miscarriage of justice. The trial has not been conducted regularly. Although the irregularity does not affect the credibility of the evidence, the departure from the proper procedures is fundamental, and makes it inappropriate to apply the proviso. This is what the High Court has described as a “radical or fundamental error”, which may “go either to the form of the trial or the manner in which it was conducted”: Wilde v The Queen(1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ. I consider that it would not be appropriate to apply the proviso in the present case. As I have said several times, the irregularity is a substantial one. The basis upon which a witness gives evidence, sworn or unsworn, is a fundamental aspect of the trial system.
33. Accordingly, while it is most regrettable that the verdict should be set aside on what may appear to be a technicality, I consider that the court has no choice other than to allow the appeal, set aside the conviction and to order a retrial. Hopefully, this decision will bring home to trial judges and to counsel the importance of paying appropriate attention to the requirements of the Act in relation to the giving of evidence. While the ultimate responsibility in this respect is that of the judge, counsel in the case also have a responsibility to attend to the appropriate procedure. In the present case it is regrettable that neither the prosecutor nor counsel for the defence raised these matters with the judge. [Emphasis added]
[6] R v Starrett (2002) 82 SASR 115, 122.
Lander J agreed and stated:[7]
[7] Ibid 126-127.
55. The Evidence Act 1929 (SA) (the Act) has amended the common law to allow a court to receive unsworn evidence from persons including children: s 9 of the Act.
56. However, it is only permissible for a court to receive unsworn evidence if the procedure prescribed by s 9 of the Act itself is followed.
57. A court can only receive unsworn evidence if the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, and the judge is satisfied that the person understands the difference between the truth and a lie, and the judge tells the person that it is important to tell the truth and the person indicates that he or she will tell the truth.
58. In my opinion, all four requirements must be satisfied before the court can receive unsworn evidence.
59. If those requirements are not met the evidence cannot be received.
60. The requirements will not be met if the judge does not make a determination or is not satisfied that the person understands the difference between the truth and a lie or the person indicates that he or she will not tell the truth on being told that it is important to tell the truth.
61. The requirements will not be met if the judge fails to make a determination or to satisfy himself or herself that the person understands the difference between the truth and a lie or fails to tell the person that it is important to tell the truth.
62. In this case there is no record that the judge made the determination, or if he did that he was satisfied that J understood the difference between the truth and a lie, or that he had told J that it is important to tell the truth.
63. It seems to me whether the requirements are not met because the judge is not satisfied that the person understands the difference between the truth and a lie or because the judge fails to observe the procedure under the section does not matter much. The end result is the evidence is not admissible.
64. In my opinion, in this matter J’s evidence was neither sworn or unsworn. In those circumstances it was not evidence that the judge could rely upon.
65. In those circumstances this was not a trial according to law. The appellant is entitled to have his trial conducted according to law.
66. I agree that the appeal therefore has to be allowed and that there must be retrial.
Fundamental departure from proper procedures
The approach taken in R v Starrett of concentration upon fundamental departure from proper procedures is clearly the correct one. It is confirmed by reference to a number of decisions of the High Court in various contexts.
In 1937, the seminal case of Johnson v Miller[8] was before the High Court and was decided in favour of the defendant. Evatt J there stated:[9]
… It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court’s inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. … It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. … [Emphasis added]
[8] (1937) 59 CLR 467.
[9] Ibid 497-498.
In 1979, in Roger Johns v The Queen,[10] the High Court quashed a conviction for armed robbery because a juror had been seated after the appellant’s peremptory challenge had been withdrawn by his counsel without instructions. Barwick CJ referred to “the fundamental error of not giving effect to the challenge” and stated that the “right of challenge, and particularly the right of peremptory challenge, lies at the very root of the jury system as it now exists”.[11]
[10] (1979) 141 CLR 409.
[11] (1979) 141 CLR 409, 418. Gibbs J (with whom Mason J agreed) also addressed the fundamental importance of the right of a defendant to challenge a juror at page 428.
In 1987, in Maher v The Queen,[12] the appellant had pleaded not guilty to the 19 charges on the Indictment and a jury was empanelled. Later, further Counts 20 and 21 were added to the Indictment and the appellant was re-arraigned before the same empanelled jury and pleaded not guilty to those charges. The appellant was convicted of Count 20. In quashing that conviction, the Court stated:[13]
The only issues which a jury could have been sworn and empanelled to try on 10 May were the issues then raised by the applicant’s pleas to the nineteen counts then charged in the indictment. Those were the issues on which the jury were entitled and could be charged to return their verdicts. … Re-arraigning the applicant on the new counts and giving him in charge of the jury on the new counts did not alter the issues which the jury had been sworn to try. The jury oath of 10 May did not extend to issues which could not be lawfully added to the issues then raised by the pleas to the nineteen counts in the indictment. …
[12] (1987) 163 CLR 221.
[13] Ibid 232-233 (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ).
The Court concluded that: “A conviction founded on that verdict cannot stand. There was a failure to observe the requirements of the criminal process in a fundamental respect”.[14]
[14] Ibid 234.
In 1988, the High Court decided the case of Wilde v The Queen,[15] which concerned the joinder of a number of sexual and other charges on two different occasions against two different women. The NSW Court of Criminal Appeal held that the evidence was not cross-admissible, and that the charges should not have been joined, but applied the proviso. In the High Court, all of the Justices considered that the basal question was whether the trial was so fundamentally flawed that the proviso had no application, but differed as to the application of that approach to the instant case. The majority stated:[16]
… The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamentalthat by their very nature they exclude the application of the proviso: see Reg. v. Hildebrandt [(1963) 81 WN (NSW) 143, at p 148]; Reg. v. Henderson [(1966) VR 41, at p 43]; Reg. v. Couper [(1985) 18 ACrimR 1, at pp 7-8]. [Emphasis added]
[15] (1988) 164 CLR 365.
[16] Ibid 373. The majority (Brennan, Dawson and Toohey JJ) determined that the error was not “of a fundamental kind” and that it was proper to apply the proviso. The minority (Deane and Gaudron JJ) took the opposite view: See at page 375 (Deane J), and page 383 (Gaudron J).
In 1999, in Katsuno v The Queen (the jury vetting case),[17] all of the Justices proceeded by reference to the question of whether there was a fundamental failure to observe the requirements of the criminal process here. Thus, the majority in the High Court said of the above decisions in Maher v The Queen and Roger Johns v The Queen:[18]
35. At one level, the decisions in Maher and Johns are concerned with failure to comply with mandatory legislative provisions relating to the constitution and authority of the jury. At another, as is clear from the judgment of the Court in Maher, they are concerned with “failure to observe the requirements of the criminal process in a fundamental respect”, of which the failure to observe mandatory provisions relating to the constitution and authority of the jury is but an example. A conviction simply cannot stand if the trial process is flawed in a fundamental respect. [Citations omitted; Emphasis added]
[17] (1999) 199 CLR 40.
[18] Ibid 60 (Gaudron, Gummow and Callinan JJ). The appeal was dismissed by a majority of three to two.
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?
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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.
In 2015, in R v Cheng,[23] the list of losses of an accused’s traditional rights and safeguards in The Queen v J, AP (reproduced above at paragraph [28]) was referred to thus:[24]
60. The point of making that list was not to applaud such developments. Instead, it was to stress that the very substantial eroding of traditional common law protections safeguarding against the risk of wrongful convictions does not mean that such a risk has somehow mysteriously disappeared. Rather, it is now more important than ever that what system of checks and balances remains, including statutory warnings and jury directions required by both the Act and the common law, be fully and strictly implemented by trial Judges. [Emphasis added]
[23] [2015] SASCFC 189.
[24] Ibid (Sulan and Peek JJ).
The Court allowed the appeal on the following basis:[25]
67. An important difference between evidence given in court (be it sworn or unsworn) and an interview conducted on an informal basis in relaxed circumstances is the effect that the respective settings may have on the appreciation of the witness as to the importance of being strictly accurate and as to the important effect that mistakes, exaggeration or falsehood may have on another person. As Duggan J observed in The Queen v J, JA,[26] although the interview does not take place under oath, it is relevant to consider whether the complainant was aware of the significance of the interview and the necessity to be truthful.
…
69. While a s 34CA statement is declared to be evidence and is certainly unsworn, the obligation under s 9(4) of the Act does not directly apply to a s 34CA statement because of the restrictive introductory words “If unsworn evidence is given under this section”.
70. However, the policy of insisting on checks and balances when unsworn evidence is relied upon by the prosecution obviously applies a fortiori to unsworn evidence given out of court (in the form of a s 34CA statement) as it does to unsworn evidence in court. It is therefore clear that the matters referred to in s 9(4) of the Act should be taken into account by the Judge when discharging his or her responsibilities under s 34D.
…
75. It is clear that strict compliance with s 9 is required when unsworn evidence is permitted; failure to comply will result in a miscarriage of justice.[27] As a matter of both logic and justice, it must a fortiori be so when a statement is wrongly admitted pursuant to s 34CA of the Act or required directions concerning such a statement are not given.
[25] Ibid.
[26] (2009) 105 SASR 563, 580 [80].
[27] See R v Starrett (2002) 82 SASR 115, 122 (Doyle CJ), 126 (Lander J); R v BBR (2009) 195 A Crim R 330, 241; R v Brooks (1998) 44 NSWLR 121; RJ v The Queen (2010) 208 A Crim R 174, 184; SH v The Queen (2012) 83 NSWLR 258, 267 [35]; The Queen v J, AP (2012) 113 SASR 529, 540, [40] (David J), 543-544 [55], 547 [69] (Peek J); R v French (2012) 114 SASR 287, 243 [25] 296 [35] (Sulan J); R v Lomman (2014) 119 SASR 463, 475 [38] (Sulan J).
Later in 2015, in the decision of this Court in The Queen v B, AM[28] it was observed:[29]
33. In considering the operation of s 13D, it is important to commence with the common law position that there is a fundamental right to test material which is to be used against an accused by cross‑examination. In R v Hodge, King CJ observed that it would be an affront to principles of natural justice upon which the legal procedures are based to deprive a defendant from the ability to cross‑examine witnesses at his trial. It is fundamental to a fair trial that a jury see and hear a witness in order to make an assessment of that witness’s evidence, it having been tested in cross-examination.
34. The legislature has enacted s 13D, amongst other provisions of the Act, which create in-roads into the fundamental right of a defendant to test evidence of witnesses for the prosecution at his or her trial. Section 13D provides, inter alia, that there are circumstances in respect of particular witnesses when the court can excuse that witness from the obligation to give evidence. The court has power to admit the witness’s evidence in an earlier trial to be used as evidence at the subsequent trial. Nevertheless, the discretion is to be exercised having regard to the fundamental rule that juries should be given the opportunity of seeing and hearing the witness’s evidence. [Emphasis added]
[28] (2015) 124 SASR 176.
[29] Ibid 182-183 (Sulan and Peek JJ). The appeal was allowed and verdict of acquittal entered.
In 2018, in the decision of this Court in R v Cronin, [30] the facts were that just after the complainant’s interview commenced, the camera slipped and thereafter only the top of her head was visible (although the audio recording was faultless throughout). The appeal was allowed on the basis that “the recording of the first interview did not answer the description of an audio visual record of the interview. There was no discretion to admit it. It was inadmissible”. Thus, Vanstone J stated:[31]
[30] (2018) 131 SASR 111 (Kourakis CJ, Vanstone and Nicholson JJ).
[31] Ibid 117-118.
19. Although the first interview was conducted in circumstances where it was expected an audio visual record would be produced, it seems that almost immediately after the questioning commenced, the camera slipped. From that point only the top of V’s head was visible. Accordingly, the appellant argues that the record is an audio, but not a visual one. On the other hand, Mr Pearce argues that, while the vision captured showed only the top of V’s head, it still amounted to a visual record, for the purposes of the term “audio visual record”. That the vision showed only V’s crown and an expanse of wall became a matter relevant to the exercise of discretion. Mr Pearce argues that the judge was entitled to take the view that, the audio quality being good and no mala fides being involved, the recording could be admitted.
20. In order to understand the meaning which Parliament intended the expression audio visual record to carry, it is necessary to examine the text itself and the context in which the expression is used. The expression used in the Summary Offences Act in relation to recorded interviews with potential witnesses is “an audio visual recording of the interview”: s 74EB. Section 13BA of the Evidence Act refers to “the evidence of a witness [being] admitted in the form of an audio visual record”.
21. It is plainly envisaged that the recording will largely take the place of viva voce evidence by the witness. As counsel for the appellant put it, it will become the evidence of the witness. In those circumstances the visual component contemplated by Parliament must surely be vision of the witness, rather than of a wall. If the tribunal is not to have the benefit of the witness giving evidence in the court room, then it would be expected that what is seen in the recording has some of the important features of evidence given in person.
22. Even without this context, the import of the expression is clear. The Macquarie Dictionary (Macquarie Library Pty Ltd, 1982) gives the following meaning to the words:
audiovisual adj. involving or directed simultaneously at the faculties of seeing and hearing.
The inclusion in this definition of the concept of simultaneity is significant. What is heard must also be seen.
23. In my opinion the recording of the first interview did not answer the description of an audio visual record of the interview. There was no discretion to admit it. It was inadmissible.
Finally, I refer to two recent cases in this Court concerning a complaint on appeal that there was insufficient evidence to satisfy the requirement in s 13BA(3)(b) that before admitting the evidence of a witness in the form of an audio visual record, the Judge must be satisfied that the witness had the requisite capacity to give sworn or unsworn evidence as at the time the recording was made.
First, in R v Sparks,[32] the appellant was convicted by a jury of two counts of aggravated indecent assault between 1 September 2015 and 29 October 2015. He appealed on the ground that the Judge had erred in admitting the audio visual record of the interview with the complainant on 1 November 2015, when there was not sufficient evidence as to the complainant’s capacity to give sworn or unsworn evidence at the time of that interview. Blue J stated:[33]
43. Section 13BA(3)(b) requires a judge to be satisfied, before admitting the evidence of a witness in the form of an audio visual record, as to the witness’s capacity to give sworn or unsworn evidence at the time the recording was made.
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47. The question whether there is material capable of satisfying a judge that a person was capable of giving sworn or unsworn evidence at the time of the interview will depend on the facts and circumstances in each individual case. There are no a priori rules such as the limitation suggested by the appellant that the interviewer must ask the person whether he or she understands the difference between a truth and a lie or tell the person that it is important to tell the truth or that the person says that he or she will tell the truth. Nor is there an a priori rule that the material on which the judge relies must be confined to statements made contemporaneously with the interview and cannot extend to subsequent statements by the witness.
48. In the present case, the Judge was entitled to have regard to the complainant’s age at the time of the interview being only two weeks short of her twelfth birthday. The Judge was entitled to have regard to the complainant’s answers, demeanour and conduct during the interview. The complainant’s answers during the interview were capable of satisfying the Judge that the complainant understood the difference between the truth and a lie. Towards the beginning of the interview the complainant made a joke that, the previous evening being Halloween, she had gone trick or treating and had lost her memory. This was capable of satisfying the Judge that she knew the difference between the truth and a lie. Throughout the interview the complainant answered Senior Constable Paterson’s question [sic questions] in a serious and solemn manner capable of satisfying the Judge that she was endeavouring to tell the truth to the best of her recollection and understood the importance of doing so.
49. The record of interview coupled with the complainant’s age comprised material capable of satisfying the Judge that the complainant was capable at the time of the interview of giving sworn or unsworn evidence.
50. The complainant’s answers on questioning by the Judge comprised additional material to which the Judge was entitled to have regard. The complainant had been almost 12 at the time of the interview and was 13 at the time of the trial. Each case must be considered by reference to its own circumstances. If a witness was very young at the time of the interview and/or the time gap between the interview and the trial was very large, answers to a judge’s questions at trial may have negligible or no probative value. In the present case, the distance in time between the two occasions was not so remote and the complainant’s ostensible understanding at the age of almost 12 was not so limited that the complainant’s answers to the Judge’s questions were incapable of having probative value on the relevant issue.
51. Having regard to the material before the Judge, the Judge was entitled to be satisfied that the complainant was capable at the time of the interview of giving sworn or unsworn evidence.
[32] [2017] SASCFC 171 (Kourakis CJ, Blue and Hinton JJ).
[33] Ibid.
It is to be noted that this decision was not approached on a conceptual basis that was different to that in the decisions considered above. Rather, it was accepted that there was indeed a condition precedent to admissibility (namely the Judge’s satisfaction that at the earlier time of the interview, the complainant had been capable of giving sworn or unsworn evidence) but that, unlike the previous decisions referred to above, a correct analysis of the evidence at trial demonstrated that that condition precedent had been fulfilled.
The second decision in 2019 in The Queen v K, GA,[34] is to the same effect. There, following a trial by Judge alone, 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 and appealed on grounds including that the Judge erred in being satisfied that the complainant was capable of giving unsworn evidence at the time a recorded interview was made in accordance with s 13BA(3)(b). Kelly J (Vanstone J and Parker J agreeing) referred to the decision in R v Sparks and stated:[35]
31. The complainant’s answers to the Judge’s questions on the voir dire formed part of the additional material which the Judge was entitled to have regard to. I agree with the statements of Blue J in R v Sparks that the probative value of such answers very much depends on the circumstances of each particular case. If, as here, the witness was very young at the time of the interview and the gap between the interview and trial was large, as in this case it was two years, then in the end the answers were of negligible value. However, given the child’s obvious state of maturity at the time of questioning, as demonstrated in the interview, I do not consider that the complainant’s answers to the Judge’s questions were incapable of having any value in relation to this issue.
32. Nevertheless, the critical material for the purpose of evaluating the child’s ability at the time of the interview to give unsworn evidence was the evidence of the interview itself.
[34] [2019] SASCFC 2 (Vanstone, Kelly and Parker JJ).
[35] Ibid.
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 and
cross-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.
The second reason is that, in a trial by Judge alone, there is a marked difference between two situations. The first situation is that of the Judge adjudicating upon the admissibility of a tranche of evidence objected to by the defence; here the Judge will be on his guard and inquire as to the content of the disputed evidence only to the extent necessary to rule upon admissibility. The second situation (that presented in the present case) is that of the Judge carefully listening to, and taking in the finest detail of, the evidence being led before him that is then assumed by all to be admissible. It is far more reasonable to expect a Judge to be able to later ignore the evidence in the first situation than in the second situation.
Indeed, the present case presents a particularly good example of the difficulties associated with that second situation. Here, the Judge was faced with the task of assessing the credibility, reliability and maturity of the complainant by reference to three interviews (the third being the longest), plus the
cross-examination at trial. As part of that process of assessment, the Judge would take into account demeanor and consistency (or inconsistency). It would be unrealistic to expect any Judge to be able to unscramble the yolk or white of the third interview and indeed the cross-examination pertaining to that third interview (which should never have occurred), all of which undoubtedly contributed to the Judge’s overall assessment of credibility, reliability, maturity, demeanour and consistency.Conclusion
The tenor of both judgments in R v Starrett was that compliance with the statutory requirements was a condition precedent to admissibility as a matter of statutory interpretation, irrespective of the happenstance in a particular case that the trial is by jury or Judge alone. Accordingly, if the trial happens to be by jury, the question of whether the accused has had a trial according to law amounts to an inquiry as to whether statutory conditions precedent to admissibility of evidence have been complied with, and not whether the jury could put out of their minds evidence received in breach of such requirements. Equally, if the trial happens to be by Judge alone, the question of whether the accused has had a trial according to law should again be answered by reference to the same inquiry as to whether statutory conditions precedent to admissibility of evidence have been complied with, and not whether the Judge could put out of his or her mind evidence received in breach of such requirements.
The question really distills to this: Would a trial by Judge alone, wherein none of the third interview is led, be significantly different from a trial in which the whole of the third interview is led with the Judge later directing himself to ignore it? In the present circumstances, the answer to that question must in be in the affirmative. The logical consequence is that the applicant did not have a trial according to law and the appeal must be allowed.
The Proviso and de minimis non curat lex
As is obvious, I consider that the present case is of the R v Starrett / Wilde v The Queen variety in that there has been a clear breach of a fundamental common law or statutory right of the accused. In such cases the common form proviso cannot be applied.
However, it is perhaps well to mention that cases may occur where it is suggested that such a right has been breached but it is debateable whether a breach has actually occurred at all; or if it has occurred, whether it is a slip of the de minimis non curat lex variety.
As an example, say in R v Cronin (considered above at paragraph [33]) the camera had slipped out of position not at the beginning of the interview, but just before the end; it may well be that, depending on all of the circumstances, such a deviation might be accepted as de minimis and therefore not lead to inadmissibility.[36]
[36] However, one has to be very circumspect here. The de minimis principle has to be very cautiously applied in an area where the danger of a thin end of a wedge is very real.
Take as a further example something factually closer to the present circumstances. Say in a trial by Judge alone the prosecutor called the third interviewer to the witness box, played a very short portion of the third interview (comprising of innocuous “settling in” questions) and the Court was then adjourned for lunch. During the adjournment, the prosecutor discovered that the third interviewer had not had the required statutory qualifications; the prosecutor reported this development to the Court and the defence applied for a mistrial. In such circumstances, it may be that a trial by Judge alone could proceed.[37]
[37] If the trial were by jury, the situation might be more complicated. Emphasis might be placed on the fact that the third interviewer should never have been called before the jury and a spectre had arisen of the jurors wondering what incriminatory material the third interview contained such that a de minimis resolution might not be appropriate. In any event, these examples may be unrealistic in that a prosecutor would usually open on the content of each of the three interviews then proposed to be led and the occurrence of such an opening would prevent the later application of the de minimis principle.
If it is considered that a slip has occurred, but that it is of the de minimis non curat lex variety such that there really is no breach, the procedure by which such conclusion may be effectuated is by way of application of the proviso. However, it is important that reasoning to this end be explicit lest it be mistakenly assumed that an established breach of a fundamental common law or statutory right of the accused is being excused by application of the proviso.
Disposition
Having regard to the strength of the case for allowing the appeal, I would grant the required extension of time within which to appeal, and allow the appeal. Although in some cases of error attributable to the prosecution a verdict of acquittal may be ordered rather than a re-trial,[38] I consider that the appropriate order in this case is for a re-trial having regard to the undertaking of the prosecution to this Court not to lead evidence of the third interview at a re-trial. Mr Vadasz did not submit to the contrary. I would propose the following orders.
1.The required extension of time within which to appeal is granted.
2.The appeal is allowed and the conviction is set aside.
3.The Information (not including the particulars upon which the applicant was acquitted at trial) be re-tried in the District Court (the matter of trial by jury or by Judge alone being governed by r 44(2) of the Supreme Court Criminal Rules 2014).
[38] See The Queen v B, AM (2015) 124 SASR 176 and authorities referred to therein.
BLUE AND NICHOLSON JJ: We have had the advantage of the reasons given by Peek J and, in particular, his Honour’s careful analysis of the facts and conspectus of the case law relevant to the notion of, and consequences following from, a failure to observe the requirements of the criminal process in a fundamental respect.
In this case, we do not find it necessary to finally determine whether the process undertaken by the trial Judge gave rise to such a fundamental failure of criminal process that the proviso could have no application. This is not a case where the proviso could be applied because it was a case dependent on acceptance of the truth and reliability of the complainant and rejection of the appellant’s evidence on oath. We agree for the reasons given by Peek J that, on the facts of this case, the appeal must be allowed. It was simply not possible for the Judge to have completely excluded the third interview from his Honour’s consideration, given that as it was heard and seen it must have contributed, whether consciously or subconsciously, to the generation or reinforcement of a (provisional) view as to the complainant’s credibility. At the least, we cannot be confident, notwithstanding the Judge’s best efforts, that he was successful in doing so.
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