Stevenson v the Queen P90/2000

[2001] HCATrans 551

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P90 of 2000

B e t w e e n -

JOSEPH GEORGE STEVENSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 4.05 PM

Copyright in the High Court of Australia

MR R.E. LINDSAY:   May it please your Honours, I appear with MS B.J. O’SULLIVAN, for the applicant.  (instructed by Lane Buck & Higgins)

MR R.E. COCK, QC:   If your Honours please, with my learned friend, MS J.A. GIRDHAM, I represent the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

GAUDRON J:   Yes, Mr Lindsay.

MR LINDSAY:   Your Honours, there are two essential special leave questions here.  First, where a judge at a pre‑trial hearing allows a child under 12 to give unsworn evidence by video recording, does the trial judge have a discretion to exclude such evidence and, if so, what are the principles upon which that discretion may be exercised?  The second proposition is where the competence of a child under 12 years of age to give unsworn evidence is being considered, for which the test in this State is the ability to give an intelligible account of events observed or experienced, is it relevant for a court to consider evidence in cross‑examination to the effect that the child does not know the difference between lies and telling the truth.

GAUDRON J:   Why is not that simply a question for the jury to take into account when determining the question of guilt or innocence?

MR LINDSAY:   Your Honour, the evidence in cross‑examination was to the effect that the child did not know what lies were, what the truth was, or the difference between the two.  I submit that is relevant to whether the child can give an intelligible account of events.

GAUDRON J:   Why?  I think I know lots of adults of whom it might be said that they could not tell the difference between the truth and a lie, but who could nonetheless could give an intelligible, indeed, plausible, account of things.

MR LINDSAY:   Yes, no doubt that is so.  In considering whether the account would be intelligible according to the experience and observation of the child, I submit it is a potentially relevant factor to consider ‑ ‑ ‑

GAUDRON J:   Relevant to what?

MR LINDSAY:   Relevant to that test.

GAUDRON J:   To what?  Whether it is an intelligible - - -?

MR LINDSAY:   Whether it is an intelligible account of events observed or experienced, and “observed or experienced” is the important bit.

GAUDRON J:   Yes.

MR LINDSAY:   If there is not that appreciation of the distinction between reality and fantasy, then the account may be embellished, or on the other hand, certain things which did occur are omitted.

GAUDRON J:   She was not asked about fantasies, dream worlds.  She was asked did she know the difference between telling lies and telling the truth.

MR LINDSAY:   Yes.

GAUDRON J:   She was not asked did she know about making things up, making up stories.

MR LINDSAY:   Yes, she was asked whether she knew what lies were and what the truth was and the difference between them.

GAUDRON J:   In truth, I think what the judge said originally is right.  There was a profound lack of understanding by counsel as to how to approach this witness.

MR LINDSAY:   Your Honour, I do not wish to overemphasise the evidence on that particular point.  There were a number of aspects to the child’s evidence which the trial judge - and, in my respectful submission, it is the trial judge with whom we ought to be concerned, and whether his discretion miscarried or not, and so far as the trial ‑ ‑ ‑

GAUDRON J:   But you are not?

MR LINDSAY:   I am sorry?

GAUDRON J:   But you are not.  The trial judge, I am sorry, yes.

MR LINDSAY:   The trial judge, yes.  So far as the trial judge is concerned, there was a breakdown on two occasions in‑chief, in that she was not answering questions.  That occurred again in cross‑examination, and then there was the lies/truth ‑ ‑ ‑

HAYNE J:   Sorry, are you speaking about what was happening when the recording was happening, or are you talking about what is happening on the trial of the accused?

MR LINDSAY:   I am sorry, when I said “the trial judge” I am referring to what is happening on the day that the jury is empanelled and the trial is to commence.  I should perhaps explain ‑ ‑ ‑

GAUDRON J:   The video, I take it, was played to the trial judge?

MR LINDSAY:   The trial judge had seen the video before he came into court, as I understand it, because he talked about his observation.  If I draw that distinction, so far as the pre‑trial hearing was concerned before Judge Blaxell, what occurred there, as your Honours would observe from the application book, is there was a breakdown on two occasions during the examination‑in‑chief, and then there was a further – the child was not answering questions in cross‑examination, and then there were those comments about lies and truth.  In addition to that, there were a number of things that the child said; “did not have birthdays; do not know why we are here today, mummy has no friend called Joe, mummy was at home not at the farm”, where all this took place.  It is alleged to have taken place is at a farm, not at the mother’s home.

There are a number of things which, on the face of it, would be evident that the child was not giving an intelligible account of what she observed or experienced.

GAUDRON J:   I do not think that is right, Mr Lindsay.  She may have indicated that she was not understanding the questions that were put to her.  Another view is that she was understanding them, somewhat better than the interrogator.  When you come to what she observed or experienced, we are talking in a different area.

MR LINDSAY:   Your Honour, while acknowledging, obviously, that questioning is difficult and there was, no doubt, deficiencies in the manner in which questions were put – I am sure I would have been guilty of that too ‑ but while accepting all that to be the case, there were two occasions in which the pre‑trial judge, Judge Blaxell, believed that he, in fact, could not take it any further.  As I say, when the child did give evidence there were these points which I mentioned, some of which no doubt can be explained in the form of the questioning, some which, in my submission, are harder to explain.

GAUDRON J:   Yes, but all of the ones you raise now are peripheral to what she observed and experienced.

HAYNE J:   The nub of it is at page 21 is it not, and what she says on page 21?

MR LINDSAY:   Yes, she certainly says that.  I think at another point she talks about a blanket being wrapped around her.  We do not have any explanation as to, presumably in order for this digital penetration to have occurred, that would have had to ‑  the blanket be taken away.  So one does not know how that situation came about.  Also, there was, of course, the objection your Honour will have observed in regard to the manner in which the question was asked about the penetration of the finger inside or outside.  There was some difficulty about that.

Perhaps I can come back to this point, your Honour, this is a question of law here.  In the end, different opinions might be expressed about whether or not she was giving an intelligible account of events observed or experienced.  In my respectful submission, the primary factor, the primary consideration in all this was, did the trial judge have a right to revoke the earlier direction of the pre‑trial judge?  I assert he did.  If so, did he miscarriage in the exercise of his discretion?  On those two points, your Honours, the Court of Appeal were in error, in my submission.

If I could take your Honours to page 82, right at the bottom of page 82, and this is really the nub of my first submission on this point.  The last sentence:

Once the Judge forms the required opinion, the evidence becomes admissible.  If the Judge conducting the trial were of a different opinion, that would be of no consequence as to the admissibility is dependent upon the opinion of the Judge first taking the evidence.

Then he says:

I would nevertheless see the Judge conducting the trial having a –

very limited –

discretion in circumstances where it would be obvious that the evidence is inadmissible or where its prejudicial value exceeds its probative value.

Taking that proposition that under section 106K(2) which is at page 11 of the applicant’s book of materials, your Honours see that allows for a revocation, an order under section 106K(1) which is an order a judge may give directions under section 106K(1), that is the pre‑trial judge:

An order subsection (1) may be varied or revoked by the judge who made the order or a judge who has jurisdiction co‑extensive with that judge.

The second, the trial judge ‑ ‑ ‑

GAUDRON J:   What is the order?

MR LINDSAY:   That order is that the effect of the video evidence may be admitted at the trial.

GAUDRON J:   No, it is not.

HAYNE J:   No, no, is it?

MR LINDSAY:   If I can perhaps lead your Honours through that.  Go back to page 9, section 106I(1)(b), that is page 9 of the applicant’s book of materials, and that says:

Where any Schedule 7 proceeding‑

which this is ‑ ‑ ‑

GAUDRON J:   Where is the provision that makes it admissible though?

MR LINDSAY:   What I am saying is, if your Honour looks at section 106I(1)(b), that allows a prosecutor to apply to a judge:

that the affected child’s evidence be taken at a pre‑trial hearing.

That is what occurred.  You then go to section 106K(1) on the next page, page 10 at the bottom says:

A judge who hears an application under section 106I(1)(b) may make such order as the judge thinks fit –

and then it goes on to deal with specific matters, and in this case the order was that the video evidence is given and it would not be edited ‑ ‑ ‑

GAUDRON J:   It is directions as to who may be present at the pre‑trial hearing and directions as to who is to have possession of the video tape.  You do have to read it, Mr Lindsay.

MR LINDSAY:   Yes, your Honour.  It does say it is to include those matters.  I do not understand it to be confined to those matters.

GAUDRON J:   There is an application – a judge may make an order under section 106J(1), may make such order about the taking of the evidence.  That seems to be where this is an application to take it on video.

MR LINDSAY:   Section 106J, your Honour will see, relates to an application under section 106I(1)(a), and section 106I(1)(a) deals with an affected child’s evidence‑in‑chief.  I think since this was also the cross‑examination, this would have come under section 106J(b).

GAUDRON J:   What makes the evidence admissible?

MR LINDSAY:   Ultimately, I submit, that the – my friend says section 106H, yes.

HAYNE J:   Including an electronic statement?

MR LINDSAY:   Yes.

GAUDRON J:   That has really got to be the question, does it not?  We work on the assumption that this is admissible evidence.  Question then, in what circumstances can it be excluded by the trial judge?  It seems to me this has all gone a little haywire.  Maybe if you had sought review of the judge’s decisions under section 106, et cetera, there may have been a different process.

MR LINDSAY:   Your Honour, I submit that the – and, indeed, the Court of Appeal acknowledged that the trial judge did have a discretion to exclude.

GAUDRON J:   Yes.

MR LINDSAY:   The question is the scope of that discretion.

GAUDRON J:   It seems fairly normal, but you want him or her to have a discretion on the basis that he or she would not have done what the judge did at first instance?

MR LINDSAY:   Yes.

GAUDRON J:   We can go around judge selecting until we never get a trial, can we not?

MR LINDSAY:   Your Honour, no, because the trial judge is designated and the parties have no control over it and obviously, in this case, the argument before the trial judge as to why the initial pre‑trial judge’s order should be revoked and the evidence not admitted, was because of what the child said during the course of that video interview – the evidence.

HAYNE J:   Sorry, you refer to the pre‑trial judge as having made an order.  What is the order that you there mention?

MR LINDSAY:   Your Honour, there is no formal order as such.  The video is taken, there is some discussion about whether or not it should be edited - this is at pages 48 to 49 - and there is no formal as such but just discussion about whether or not there is ‑ ‑ ‑

HAYNE J:   What has happened up to page 49 of the application book is, is it not, that an electronic statement has been taken from the complainant and an opportunity given to counsel for the accused to cross‑examine the complainant about the statement she made?

MR LINDSAY:   Correct.  That is the position up until page 49.  Then, come the day of the trial, the challenge is made to the admissibility of that video record of interview.

GAUDRON J:   On the basis that - - -?

MR LINDSAY:   On the basis that assessing all the child’s evidence taken on video, that the test of competence to give unsworn evidence was not met.

GAUDRON J:   Which the first instance judge had held was met?  Impliedly held.

MR LINDSAY:   Yes, yes, impliedly ‑ ‑ ‑

GAUDRON J:   At least had to impliedly have so held before making the order for the video taping, I take it?

MR LINDSAY:   Yes.  Certainly, there is an implication he said that this child can give unsworn evidence.

GAUDRON J:   Let us assume you are right, that one judge can overrule a decision of another judge, you still do not find, do you, in the transcript of that recording an indication that she could not give an intelligible account of what she observed and experienced?  I would have thought the account was quite intelligible.

MR LINDSAY:   Your Honour, I suppose to some extent it is a question of what she says but also examining how she is.  Ms Sullivan and I looked at it yesterday and for a lot of it she has got her hands over her face like this and she is not answering questions.

HAYNE J:   I am not surprised by that at all.

MR LINDSAY:   Again, your Honour, it comes back to, in my submission, if one has regard to what his Honour Judge Healy said at page 57 and

whether what his Honour there said properly complies with the test under section 106C at page 57, and your Honours see at line 30 down to line 49 he deals with that issue.

HAYNE J:   We seem to have about three or four issues in play there including over on to page 58 general questions of unfairness, age, confused, et cetera.

MR LINDSAY:   Yes, I understand his Honour when talking about “unfairness” is doing no more than – it is preface by his comments that the proper test under section 106C of the Evidence Act was not fulfilled and for that reason he thinks it would be unfair, in the light of the age of the child and the confused nature of the child’s evidence on the video, for it to be admitted.  I invite your Honours to read that as really just saying, “Look, I find the test under section 106C” which, in my submission, he correctly sets out earlier, an intelligible account of the events of which is experienced, is not met.  That is his conclusion. 

When it comes to the appeal court, the appeal court take the view that it was not open to his Honour to have regard to her evidence once the evidence had commenced because competence, it was argued, had to be determined before the evidence commenced.  I submit that is just not correct in law.  There is authority that, notwithstanding someone who has been found to be competent, that when the evidence is unrolled, if it then becomes evident that the witness is not competent, it is open to the judge to exclude that evidence or, if the evidence is being given in the ordinary way, to direct the jury not to have regard to it.

Your Honours, I submit that the test applied by the Court of Appeal as to the powers of the trial judge, Judge Healy, is not right, and that his Honour was acting within a proper exercise of his discretion.  He was directing his mind to the test under section 106C.  Unless there are any other matters.

GAUDRON J:   Thank you, Mr Lindsay.  Mr Cock, the Court would like to know what system you have put in place to ensure that things proceed somewhat more comfortably and coherently with respect to these video‑taped, young child matters.

HAYNE J:   This was a very early example of this process, was it not?

MR COCK:   Yes.

HAYNE J:   What is the prosecution side going to do?  Is there now established any set of instructions, protocol or the like - I do not ask what they are - to ensure that young children are examined in a way that is comprehensible to the child, useful to a court and fair to an accused?

MR COCK:   What I can say in a general way is that in Western Australia we have a rather unique service called the Child Witness Service which operates from offices within the District Court where this evidence is generally taken.  I have close relations with that particular office.  It is independent of mine, however, and it has a more extensive than it has ever has before role in preparing witnesses of this type for this type of procedure.

HAYNE J:   It is preparing prosecutors and that matters

MR COCK:   What happens is it now has, I think, as a consequence of not just this case ‑ ‑ ‑

GAUDRON J:   And perhaps counsel, generally.

MR COCK:   But other cases, to liaise more carefully ‑ ‑ ‑

GAUDRON J:   Your Honour is much more ambitious than me in thinking that defence counsel can be prepared properly, although they ought to be.

MR COCK:   What happens is I have a close liaison with the Child Witness Service and my prosecutors, who are not all my prosecutors, the ones who generally would be adducing evidence of this sort, whilst they do not have a regimented training regime, have demonstrated interest in the area and generally spend with time with members of the Child Witness Services, practical experience and preparatory experience, going though the sorts of issues that this case demonstrates are required.

HAYNE J:   As I read the provisions, there is no explicit provision that would deal with a judge giving directions about the manner of conduct of the examination at the level of detail about how questions are to be asked and the like.  Dealing with a child of five requires a degree of forethought in preparation to ensure that what is asked of the child is capable of being understood and can be dealt with by the child.

MR COCK:   Section 106J does seem to give power for a judge to make directions as to the procedure to be followed in the taking of evidence and the manner of the cross‑examination and the re‑examination.  That might provide authority to go quite specific.

GAUDRON J:   It may be that there is a need to give thought in advance to how the questions are framed.

MR COCK:   I totally agree with your Honour.

HAYNE J:   It is common place in crime to work the script out first.

MR COCK:   Yes.  We have a number of procedures which are not administered by my office.  We have a committee constituted by members of the court and my office and the Child Witness Service, and the Supreme Court, that are over‑viewing the introduction of these legislative procedures.  They produce reports which are examined and considered.  There was, unfortunately, as this case demonstrates, a technological difficulty with the court on one occasion, which is now ‑ ‑ ‑

HAYNE J:   The child is confronted with two images of the judge.  Surprise, surprise, the child gets confused.

MR COCK:   Yes, no audio I think on one occasion, and indeed there have been other problems.

GAUDRON J:   A number of the questions were not well framed.

HAYNE J:   They might have been suitable to a 30‑year‑old complainant of tertiary of post‑tertiary education, not to a five‑year‑old child.

MR COCK:   I am pleased to say the judges of the District Court are showing keen interest in the provisions too, as this particular judge admitted at one stage.  I can only say that there is keen co‑operation between all the agencies - I think even the private Bar is represented on one of the committees that is looking at the processes and reviewing them and implementing procedures to improve them.  I should say from what I have seen of more recent transcripts of this kind, they are far better, not just from the perspective of my office but the court and also defence counsel.

GAUDRON J:   I do not think you need to reply to that do you, Mr Lindsay?

MR LINDSAY:   No, your Honour.

GAUDRON J:   Mr Lindsay, we are of the view that there is no error of principle to be detected in the approach of the Court of Criminal Appeal in this matter.  Accordingly, special leave is refused.

AT 4.34 PM THE MATTER WAS CONCLUDED