The King v JN (No 2)

Case [2024] NTSC 30

CITATION:The King v JN (No 2) [2024] NTSC 30

PARTIES:THE KING

v

JN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:22222084

DELIVERED:  16 April 2024

HEARING DATE:  18 March 2024

JUDGMENT OF:  Brownhill J

CATCHWORDS:

EVIDENCE – Admissibility – Vulnerable witnesses – Evidence (National Uniform Legislation) Act ss 12, 13, 21B, 21D, s 21J, 26, 31, 37, 137, 138, 192 – Whether Child Forensic Interviews are admissible as evidence-in-chief at trial – Whether there is ‘good reason’ to not admit a recorded statement – Whether it is ‘in the interests of justice’ to admit a recorded statement – Presumption of competency – Leading questions – Leading questions asked within recorded interviews – Evidence obtained improperly or in contravention of law – Whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence – Probative value outweighed by danger of unfair prejudice.

A2 v The Queen [2018] NSWCCA 174, Douglass v The Queen (2012) 86 ALJR 1086, Gray v The Queen [2020] NSWCCA 240, Hawker v The Queen [2012] VSCA 219, HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334, IMM v The Queen (2016) 257 CLR 300, Knowles v The Queen [2015] VSCA 141, Knowles v The Queen [2015] VSCA 141, LF v The King [2023] NSWCCA 232, Martin v The Queen (2013) 238 A Crim R 449, Pease v The Queen [2009] NSWCCA 136, Pell v The Queen (2020) 268 CLR 123, Ridonfi v Heenan [2008] NTMC 34, RJ v The Queen (2010) 208 A Crim R 174, The Queen v AW [2018] NTSC 29, The Queen v A2 (2019) 269 CLR 507, The Queen v BM (2015) A Crim R 301, The Queen v Brown [2008] NTSC 14, The Queen v Brown [2010] NTSC 17, The Queen v Drover [2022] NTSC 12, The Queen v Ellis (1994) 1 NZCrimC 592, The Queen v GW (2016) 258 CLR 108, The Queen v Lisoff [1999] NSWCCA 364, SLJ v The Queen (2013) 39 VR 514, Ward v The Queen (2017) A Crim R 299, referred to.

Evidence Act 1939 (NT) ss 21B, 21AA, 21AB, 21D, 21H, 21J.

Evidence (National Uniform Legislation) Act 2011 (NT) ss 12, 13, 26, 32, 33, 37, 137, 138, 192.

S Odgers, Uniform Evidence Law (LawBook, 16th ed, 2021).

REPRESENTATION:

Counsel

Crown:M Aust

Accused:P Crean

Solicitors

Crown:Office of the Director of Public Prosecutions

Accused:Grays Legal NT

Judgment category classification:   C

Judgment ID Number:  Bro2402   

Number of pages:   54        

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The King v JN (No 2) [2024] NTSC 30
No. 22222084

BETWEEN:

THE KING

AND:

JN

CORAM:    BROWNHILL J

REASONS FOR JUDGMENT

(Delivered 16 April 2024)

  1. The issue in this matter was whether the two recorded child forensic interviews (‘CFIs’) of the complainant, who was…

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AGLC
The King v JN (No 2) [2024] NTSC 30
Case
[2024] NTSC 30
Decision Date

CaseChat Overview and Summary

The case before the court involved the admissibility of Child Forensic Interview (CFI) recordings of a child complainant in a trial for sexual and serious violence offences. The accused contested the admissibility of these recordings as evidence-in-chief under the provisions of the Evidence (National Uniform Legislation) Act, specifically sections 21B, 21D, and 21J. The court had to determine whether the CFIs could be admitted as the complainant's evidence-in-chief, considering the special measures intended to protect vulnerable witnesses and the potential impact of leading questions on the child's testimony.

The primary legal issues revolved around the interpretation and application of sections 21B, 21D, and 21J of the Evidence Act, focusing on the admissibility of the CFIs and the criteria for informed consent. The court considered whether there was good reason to not admit the recorded statements and whether admitting them would be in the interests of justice, balancing the probative value of the evidence against the potential for unfair prejudice. Additionally, the court examined whether the complainant's competency to give evidence was presumed under the law and whether the leading questions asked during the interviews compromised the admissibility of the statements.

In determining the admissibility of the CFIs, the court noted that the complainant, as a child, was a vulnerable witness under section 21B of the Evidence Act. The court found that the CFIs were admissible as the complainant's evidence-in-chief, given the statutory provisions intended to protect vulnerable witnesses and the special measures to mitigate the trauma of giving evidence. However, the court held that there was good reason not to admit the CFIs due to the leading questions asked during the interviews, which potentially compromised the integrity of the evidence. The court concluded that the desirability of admitting the evidence did not outweigh the undesirability of admitting evidence obtained through leading questions.

The court ordered that the CFIs of the complainant would not be admitted as evidence-in-chief in the trial. This decision was based on the recognition that the probative value of the evidence was outweighed by the danger of unfair prejudice due to the leading questions asked during the interviews. The court emphasised the importance of adhering to the principles set out in section 21D of the Evidence Act to protect the interests of vulnerable witnesses while ensuring the fairness of the trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Dixon asked the complainant if all of what she had told her today had been the truth. The complainant said, ‘Yes’. Dixon asked the complainant if she understood that it is wrong, and an offence, to tell them things that are not true and she said, ‘Yes’. Dixon asked the complainant why they were making the recording and she said: ‘just to finish everything with a statement’.[93]CFIs as evidence-in-chiefPart 3, Evidence Act – Vulnerable witnesses Section 21B of the Evidence Act 1939 (NT) (‘Evidence Act’) applies to a trial in respect of a charge for a sexual offence,[94] or a serious violence offence[95] (s 21B(1)). The offences with which the accused has been charged are sexual offences and/or serious violence offences. Section 21B(2)(a) of the Evidence Act provides that, if a vulnerable witness is to give evidence in proceedings to which s 21B applies, the Court may admit a recorded statement[96] in evidence as the witness’s evidence-in-chief or as part of the witness’s evidence-in-chief. As a child, the complainant was a vulnerable witness within the meaning of s 21B(2) (s 21AB(a)). Section 21B(3) of the Evidence Act provides that if the prosecutor asks the Court to admit a recorded statement in evidence, the Court must accede to that request unless there is good reason for not doing so. The two CFIs of the complainant are recorded statements within the meaning of s 21B (s 21AA). Section 21D(1) of the Evidence Act provides that it is the intention of the Legislative Assembly that, as children tend to be vulnerable in dealings with persons in authority (including courts and lawyers), child witnesses be given the benefit of special measures. Section 21D(2) sets out five principles the Court must have regard to where the witness is a child, as follows:(a)the Court must take measures to limit, to the greatest extent practicable, the distress or trauma suffered (or likely to be suffered) by the child when giving evidence;(b)the child must be treated with dignity, respect and compassion;(c)the child must not be intimidated when giving evidence;(d)proceedings in which a child is a witness should be resolved as quickly as possible;(e)all efforts must be made to ensure that matters that delay or interrupt a child’s evidence in a proceeding are determined before a special sitting or trial commences. In The King v Hampton [2023] NTSCFC 1, the Full Court held (at [46]) that the purpose of Part 3 of the Evidence Act is to reduce the trauma associated with giving evidence for vulnerable witnesses without eroding the accused’s right to a fair trial.Part 3A, Evidence Act – Domestic violence offence proceedings Part 3A of the Evidence Act contains provisions which permit a recorded statement of a witness to be played at a trial and admitted as the witness’s evidence-in-chief (s 21H). The provisions apply to trials in respect of a domestic violence offence and recorded statements of complainants. Counsel for the accused made some submissions about these provisions, including an argument that s 21J of the Evidence Act was not satisfied in respect of the two CFIs of the complainant. Section 21J(1)(b) requires a recorded statement to be made with the informed consent of the complainant and s 21J(2) set out matters which were, arguably, pre-requisites to the making of a recorded statement with informed consent.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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