Sears v The Queen

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.