The Queen v GJ [No. 1]
[2014] ACTSC 108
•24 March 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v GJ [No. 1] |
Medium Neutral Citation: | [2014] ACTSC 108 |
Hearing Date(s): | 24 March 2014 |
DecisionDate: | 24 March 2014 |
ReasonsDate: | 26 March 2014 |
Before: | Penfold J |
Category: | Judgment |
Catchwords: | EVIDENCE – Witnesses – competence to give sworn evidence – competence to give unsworn evidence – whether docket judge’s decision to take unsworn evidence from complainant was in error – no defence objection to taking unsworn evidence made at the time of docket judge’s decision – defence agreement to abide by docket judge’s pre-trial rulings in event that trial listed before a different judge – defence objection to admission of pre-recorded unsworn evidence made early in trial starting several months later – whether defence could withdraw agreement to taking of unsworn evidence or agreement not to challenge pre-trial rulings – whether decision to take unsworn evidence could have been appealed earlier – whether decision to take unsworn evidence could have been appealed if made during trial – whether failure to rule on defence objection would lead to jurisdictional error – arrangements for children to give evidence at pre-trial hearings – interests of justice – pre-recorded unsworn evidence given by complainant admitted at trial. |
Legislation cited: | Criminal Procedure Act 1986 (NSW), s 130A Evidence Act 2011 (ACT), ss 13, 13(3), 13(4), 13(5), Evidence (Miscellaneous Provisions) Act 1991 (ACT) Explanatory Statement for the Sexual and Violent Offences Legislation Amendment Bill 2008 (ACT) |
Cases cited: | Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 |
Decision: | The complainant’s unsworn evidence given at a pre-trial hearing is admitted. |
Parties: | The Queen (Crown) GJ (Accused) |
File Number(s): | SCC 55 of 2013 |
Introduction
GJ is on trial before a jury for six charges of acts of indecency involving two sisters who were aged five and three at the time of the alleged offences.
Pre-trial taking of evidence
After the allegations were first made, the children spoken to police and the conversations were recorded in accordance with provisions of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) rendering recordings admissible as the children’s evidence-in-chief. The older child subsequently attended a pre-trial hearing on 6 August 2013 at which she was cross-examined. Before that cross-examination, the judge to whom the matter had been docketed undertook an inquiry for the purposes of s 13 of the Evidence Act 2011 (ACT). His Honour questioned the child about the matters raised in s 13(3) of the Evidence Act, which provides that a person is not competent to give particular evidence if he or she “does not have the capacity to understand that in giving evidence he or she is under an obligation to give truthful evidence”.
Having questioned the child, his Honour said:
Gentlemen, despite the fact that the witness has indicated that she understands that - at least understands the difference between the truth and what is not the truth, and says that she understands that she has an obligation to tell the truth today, I think that it is probably better to proceed under subsection (5). At the present time, because of the difficulty in truly gauging the level of her understanding and her age, I am not satisfied that she has the capacity to understand that in giving evidence today she has an obligation to give truthful evidence. So I propose to proceed under subsection (5) of section 13. Do you want to be heard in relation to that, Mr Gill?
Mr Gill, counsel for GJ, indicated that he did not wish to be heard.
Section 13(4) of the Evidence Act says that a person who is not competent to give sworn evidence of a fact may be competent to give unsworn evidence, subject to s 13(5).
Accordingly, his Honour spoke to the child as required by s 13(5), and she then gave unsworn evidence. A recording of that evidence was made, to be played to the jury at the trial.
Subsequently, before the Chief Justice in a Pilot Central Criminal Listing callover, the parties agreed to be bound by the pre-trial rulings of the docket judge.
Objection to admission of pre-trial evidence
When, some time later, GJ’s trial began before me, but after the Crown began calling its witnesses, defence counsel sought to challenge the admissibility of the pre-trial evidence taken before the docket judge.
The argument was that the evidence was inadmissible because the docket judge did not make the findings necessary to permit unsworn evidence to be taken.
Section 13(6) of the Evidence Act says that:
... it is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
It is arguable that the combined effect of ss 13(3), (4) and (5) is to require the judge to make a positive finding that the witness is not competent to give sworn evidence (so as to rebut the presumption of competence in s 13(6)) before the person is competent to give unsworn evidence under s 13(4); see RJ v The Queen [2010] NSWCCA 263.
It is also arguable that his Honour did not make any such finding; his Honour noted that the child said “that she understands that she has an obligation to tell the truth today”, but then decided that it was “probably better” to take the evidence unsworn, saying:
Because of the difficulty in truly gauging the level of her understanding and her age, I am not satisfied that she has the capacity to understand that in giving evidence today she has an obligation to give truthful evidence.
That is, his Honour’s explanation for taking unsworn evidence appeared to be that he was not satisfied that the child was competent to give sworn evidence (a matter that appears to be addressed by the presumption in s 13(6), rather than by a judicial determination), not that he was satisfied that she was not competent to give sworn evidence (a finding apparently required under s 13(3) before s 13(4) permits unsworn evidence to be taken). However, as already noted at [4] above, defence counsel did not wish to be heard on his Honour’s ruling when it was foreshadowed, and indeed only raised the current issue after raising a separate issue that had led him into a particularly careful focus on s 13 and the related provisions of the EvidenceAct.
The issues
Counsel’s challenge raised several questions.
First, there is the substance of his challenge, which as already indicated is certainly arguable.
Secondly, there is the question whether the docket judge’s ruling should be able to be challenged at this stage in the trial, seven months after the pre-trial hearing at which defence counsel accepted his Honour’s decision to take unsworn evidence from the child.
Thirdly, there is the question whether the docket judge’s ruling should be able to be challenged at this stage in the trial, nearly four months after the parties agreed before the Chief Justice that they would be bound by the rulings of the docket judge.
Argument
Counsel for GJ, in support of the proposition that I should permit his Honour’s ruling to be disputed at this point, referred me to several cases.
First, he mentioned:
(a) R v Shalala, Zoudi and El-Azar [2007] VSCA 199 (Shalala) at [24], for the proposition that an admission or concession of fact made by the defence may be withdrawn unless to do so will result in irreparable unfairness to the other side; and
(a) Ubertini v Saeco International Group Spa [2013] VSC 468 at [24], for the proposition that “a concession by counsel may be withdrawn provided no prejudice is caused by the making of the concession and its subsequent withdrawal”.
In each of those cases, the court concerned noted that the only identified effect of allowing the relevant concession to be withdrawn was that the other party would have to prove the matter concerned in the usual way. In Shalala, the court noted that this might have required the Crown to be permitted to reopen its case.
Counsel then relied on two further cases:
(b) Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222 (JG) at [79], referring to Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; 239 CLR 531 at [53]-[56], [76] and [114] (Heydon J) (Kirk) for the proposition that:
a criminal trial is not to be run on the basis of some idiosyncratic view of the parties as to the applicable rules of evidence; it is to be run on the basis of the law prescribed by the Parliament
(c) Kirk itself, at [76] and [114], for the proposition that a court’s power to try charges is limited to trying those charges according to the laws of evidence and that conducting a trial otherwise than in accordance with the rules of evidence constitutes jurisdictional error.
The argument emerging from those propositions in this case seemed to be as follows (although it was not articulated in this form).
The first step was that:
(a) the defence’s concession that the child witness should be permitted to give unsworn evidence (implicit in counsel’s indication that he did not wish to be heard on his Honour’s proposal to take the evidence on that basis) may be withdrawn unless the Crown can identify irreparable prejudice arising from that withdrawal; and
(b) the defence’s agreement to be bound by the docket judge’s pre-trial rulings may be withdrawn unless the Crown can identify irreparable prejudice arising from that withdrawal.
Secondly, it was put implicitly if not explicitly (because argument did not proceed in quite this way) that since the Crown had not identified irreparable prejudice, the concession and agreement may be withdrawn.
Next, it was indicated that the defence, having withdrawn both those concessions, objected to the receipt of the pre-recorded evidence.
It was then put, further, that if the proper steps were not taken to determine that the witness should be permitted to give unsworn evidence, then any trial involving the receipt of that evidence would involve jurisdictional error.
Finally, counsel for GJ indicated, to avoid falling into jurisdictional error, I must determine the objection before the trial can proceed.
Consideration
I have not been persuaded by counsel’s argument that the defence’s objection had to be determined before the trial could proceed.
Whether defence “concessions” could be withdrawn
First, I was not persuaded that the conduct of the defence in this case was equivalent to the making of a concession as to a fact relevant in a trial, the effect of which was to relieve the other party of the obligation to prove that matter in the normal way.
Furthermore, it is clear that what was “conceded” by the defence in this case was, first, a particular ruling by his Honour about an evidentiary question and, secondly, in general terms, that in the context of the Pilot Central Criminal Listing arrangements which might have required the trial to be a heard by a different judge from the one who made the pre-trial rulings, the defence would not seek to re-argue any of those rulings if the trial were heard before a different judge.
As far as I can see, the entire criminal justice system would break down if rulings made by a trial judge could be repeatedly re-opened by counsel during the course of a trial for no reason other than counsel having come across further arguments that could be made. No doubt there are particular circumstances in which it would be appropriate for a ruling to be reconsidered in the course of a trial, especially if developments during a trial raised issues not considered for the purpose of the original ruling, but no such circumstances were apparent here.
Nor could I see that the fact that a trial ultimately comes to be heard before a judge other than the one who has made a pre-trial ruling should in general expand the scope for re-opening and re-arguing such a ruling in the course of the trial. The parties, and particularly one party over the objection of the other, should not lightly be released from an agreement not to challenge pre-trial rulings.
Whether failure to determine objection would produce jurisdictional error
I was also not convinced that a failure to determine the defence objection to the child’s evidence at this stage would lead this court into jurisdictional error. This case does not involve any kind of consensual departure from the laws of evidence of the sort that might deserve the description of “some idiosyncratic view of the parties as to the applicable rules of evidence”. It involves a determination by the judge that, under s 13 of the Evidence Act, the child was competent to give unsworn evidence, a determination that was not challenged by either party at the time.
It cannot be denied that trial judges sometimes make mistakes. It is the job of Courts of Appeal to correct those mistakes.
As already outlined, it is possible that his Honour made a mistake in reaching his conclusion about the child’s competence, or reached the correct conclusion but failed to express it in the terms arguably required by the Evidence Act. An assertion of such an error might have founded an application for leave to appeal his Honour’s interlocutory ruling, especially given the fundamental importance of the child’s evidence and the fact that when the ruling was made, the trial was not expected to commence for another seven months and the appeal might have been able to be determined in the interim. An assertion of such an error might yet provide a ground of appeal against the verdicts in this trial.
However, I remain to be convinced at this stage that the real significance of the decisions in JG and Kirk is that any incorrect ruling on evidence by a trial judge necessarily results in the trial being infected by jurisdictional error, or even that the incorrect admission of any evidence in a trial necessarily has this effect.
Arrangements for children to give pre-trial evidence
The significance of his Honour’s ruling must be considered in the context of the Evidence (Miscellaneous Provisions) Act provisions for the evidence of children in sexual offence proceedings to be taken in pre-trial hearings which may be heard months or even years before the trial proper can be heard. As set out in the Explanatory Statement for the Sexual and Violent Offences Legislation Amendment Bill 2008:
The pre-recording of evidence at a pre-trial hearing aims to redress fundamental problems with the criminal justice system and how it deals with children’s evidence. Delays in the court process are inevitable, but work against children’s ability to recount events long after they occur. For young children and people who are intellectually impaired, the ability to give cogent evidence many months, or years after the event might be beyond their developmental and intellectual capacity, despite the fact that they were able to give coherent descriptions at a time closer to the events in question.
The same Explanatory Statement explained that related changes to the committal arrangements were among other things intended to:
reduce the number of times children ... are required to give evidence throughout the criminal justice system, which will help mitigate the problems that result from inconsistencies and omissions which are unavoidable when a child is forced to recount their story repeatedly.
If, as would have happened before the Evidence (Miscellaneous Provisions) Act amendments were enacted, the child’s evidence had been taken during a trial immediately after his Honour’s ruling, then the only scope for challenging that ruling would have been on appeal from the verdict at the end of the trial. On the other hand, the current provision for the child’s evidence to be taken as soon as possible after the matter is committed to the Supreme Court and possibly well in advance of trial provides a period during which, as already noted, an appeal against an interlocutory ruling made in a pre-trial hearing could be the subject of an application for leave to appeal.
The effect of the pre-trial hearing processes is that a challenge, not to the content of the child’s evidence but to the process by which it is put before the court, if delayed until the trial and then upheld, might require the whole process of taking the child’s evidence to start again months or even years after the child believes that he or she has finished with the matter. Of course, this may also be the outcome of an appeal that results in an order for a retrial, but the fact that nothing can be done about that consequence does not mean that the Evidence (Miscellaneous Provisions) Act processes should be applied in such a way as to provide yet another opportunity for the child to be required to repeat his or her evidence.
The interests of justice
In all these circumstances, it seems to me that a very good reason would be needed to allow a party who has not taken advantage of the gap between a pre‑trial hearing and the trial to seek to appeal a ruling made at the pre-trial hearing to come to the trial and seek to re-argue the ruling before the trial judge (rather than on appeal), in a way that would not generally have been available in the absence of a pre-trial hearing process, and in a way that seems to undermine one of the central aims of the pre-trial hearing provisions. No such reason was identified in this case.
Finally, I had regard to the fact that in New South Wales there is legislation restricting the capacity of parties to challenge pre-trial rulings at the trial, including, and perhaps in particular, where the pre-trial rulings have been made by a different judge. These provisions do not apply in the ACT, of course, but it was in my view relevant that in each case the circumstances in which a trial judge in NSW may allow such a ruling to be re-opened are that that trial judge is satisfied that it would not be in the interests of justice for the ruling to be binding. That comes, among other things, from s 130A of the Criminal Procedure Act 1986 (NSW).
For the reasons already canvassed, and noting that the interests of justice do not only relate to the interests of the accused but may also affect the interests of complainants and the community more generally, I did not consider that the interests of justice were offended in this case by holding the parties to their agreement not to challenge the pre-trial rulings of the docket judge at the subsequent trial.
Conclusions
In summary, I was not persuaded that the defence:
(a)having not sought to be heard on his Honour’s proposal to receive unsworn evidence when it was indicated;
(b)having not sought to challenge the ruling at any point before the trial began; and
(c)having agreed some months after the ruling was made not to challenge the pre-trial rulings of the docket judge in the event that the trial was heard before a different judge;
should have been permitted to raise an objection to the receipt of the child’s unsworn evidence in the course of the trial. My refusal to determine that objection was not, however, intended to indicate any view about whether there was any substance to the objection.
| I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: | |
Representation: | Counsel: Mr M Thomas (Crown) Mr S Gill (Accused) |
| Solicitors: ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Accused) |