The Queen v GJ [No. 2]
[2014] ACTSC 113
•31 March 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v GJ [No. 2] |
Medium Neutral Citation: | [2014] ACTSC 113 |
Hearing Date(s): | 28 March 2014 |
DecisionDate: | 31 March 2014 |
Before: | Penfold J |
Category: | Judgment |
Catchwords: | EVIDENCE – Admissibility and Relevancy – father on trial for acts of indecency against daughters – proposal to cross-examine witness on specific contents of family report prepared in Family Court proceedings – no proposal to call author of report – mother’s evidence is that report is inaccurate not unfavourable – mother giving evidence through interpreter – no proposal to tender whole report – whether proposed cross-examination about impact of selected parts of report would cause unfairness – whether contents of report admissible as relevant to mother’s credibility – whether mother’s credibility would be affected by her opinion of impact of family report – probative and prejudicial value of parts of family report selected to be subject of cross-examination because they are said to be unfavourable to mother – directions to limit use of evidence not adequate to address prejudice – cross-examination not permitted about specific contents of family report. |
Legislation cited: | Evidence Act 2011 (ACT), ss 44, 44(2), 44(3), 45, 45(3), Chapter 3, ss 106, 106(1), 106(2)(a), 135(a), 136. |
Texts cited | Stephen Odgers, Uniform Evidence Law (Lawbook Co 10th ed 2012) |
Decision: | Counsel is not permitted to cross-examine the mother of the complainants about the specific contents of a family report prepared for the purposes of Family Court proceedings between the mother and the accused. |
Parties: | The Queen (Crown) GJ (Accused) |
File Number(s): | SCC 55 of 2013 |
Introduction
This trial concerns six charges of acts of indecency allegedly committed by a father against his two daughters, who were aged five and three at the time of the alleged offences. The Crown case is that the allegations were first made to the children’s mother and, given the age of the children, her evidence of the complaints is vital in the Crown case.
The defence is, in general terms, that the allegations have been fabricated for the purpose of gaining advantage in the Family Court proceedings about the future arrangements for the children.
It is clear that, in general terms, the defence must be allowed to put to the mother a possible motive for her involvement in what the defence says was the fabrication of the abuse claims made by her daughter. More specifically, the defence must also be allowed to put to the mother the proposition that only a few days before the first allegations were made by her, the mother became aware of a family report prepared for the Family Court proceedings that could have been assessed as damaging to her prospects of excluding the father from having any significant contact with the children.
The family report
The allegations first came to light outside the family on 5 September 2012. The mother has already agreed that a copy of the family report was available to her around 30 August 2012. Questioned about whether the report was unfavourable, she has so far denied that she considered it unfavourable, but has said that it was inaccurate in some respects, that is, she has already given evidence that she was not satisfied with the contents of the report.
Counsel for the accused wants to question the mother further about her evidence that she did not consider that the report was unfavourable. He says that if the mother continues to deny that she considered the report unfavourable, he proposes to read specific sections of the report to her and put to her that she must have considered them unfavourable. He does not propose to tender the full report.
Cross-examination about contents of family report
The prosecutor objects to the proposed line of questioning.
His objections are based on s 44 of the Evidence Act 2011 (ACT) and on questions about whether the family report is in any case available to be used in legal proceedings other than in the Family Court. He initially also raised concerns about the fact that the prosecution did not have access to the report, but that matter seems to have been resolved.
Operation of s 44
Section 44 says:
Previous representations of other people
(1)Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.
(2)A cross-examiner may question a witness about the representation and its contents if—
(a) evidence of the representation has been admitted; or
(b) the court is satisfied that it will be admitted.
(3)If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows:
(a) the document must be produced to the witness;
(b) if the document is a tape recording, or any other kind of document from which sounds are reproduced—the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other people present at the cross-examination hearing the contents;
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that the witness has given;
(d) neither the cross-examiner nor the witness may identify the document or disclose any of its contents.
(4)A document used in a way mentioned in subsection (3) may be marked for identification.
I understand that it is conceded that the contents of the family report are “previous representations made by a person other than the witness” and would in the abstract be inadmissible hearsay, given that there is no suggestion that the maker of those representations will be called as a witness.
However, defence counsel says that s 44 does not apply because he is not seeking to question the mother about the representations, but about her opinion of those representations. I accept that general questions about the mother’s assessment of the significance of the report, such as have already been asked and answered, are not questions about previous representations so as to offend s 44. It might also be the case that other, differently framed, questions about the general contents of the report would not offend s 44, for instance, questions about whether the mother thought the report, even if inaccurate, might be damaging to her position in the Family Court proceedings.
One of the problems, however, with defence counsel’s proposed line of questioning is, in my view, that there is no inconsistency between:
(a)the family report containing material that, if accepted, would be damaging to the mother’s case in the Family Court; and
(b)the mother’s evidence that her view of the report was not that it was unfavourable but that it was inaccurate.
A report that is inaccurate may well be damaging to a person’s case. However, such a person might legitimately take the view that once the inaccuracies are corrected, the report will not be damaging, and in those circumstances might also legitimately express the view that the report is inaccurate rather than unfavourable. I cannot see that a reluctance to describe such a report as unfavourable as well as inaccurate necessarily indicates a degree of insincerity, let alone actual dishonesty, although the significance of this aspect of the questioning remains unclear.
I note in this context also that the mother, whose English is not good, has given evidence through a Mandarin dialect interpreter. While it is true that a witness cannot be allowed to “hide behind an interpreter”, it must also be true that counsel should not be allowed to take advantage of the fact that the interpretation process, or the linguistic differences that it is attempting to address, may obscure some of the subtleties that might appropriately be relied on in cross-examination of a witness whose use of language appears to be generally consistent with that of cross-examining counsel.
On the basis that the mother could honestly have held the view that the family report was an inaccurate document that needed to be corrected rather than an unfavourable document that needed to be met by making damaging allegations against her husband, it is not clear what legitimate purpose would be achieved by putting to the mother that specified statements in the report were unfavourable and receiving the response that they were inaccurate. Among other things, such answers would seem to leave open the possibility that the mother’s concern was to correct inaccuracies in the report rather than to add new matters into the equation by fabricating allegations of sexual abuse of the children.
Leaving aside the possible risks of such questioning of the mother, counsel’s proposal to read portions of the report to the mother and to question her about whether she thought those portions were unfavourable seems to me to fall squarely within the description of what is restricted by s 44, that is, questions about “a previous representation alleged to have been made by a person other than the witness”.
Section 44 is not explicitly confined to questioning about the truth or otherwise of the relevant statements, so counsel’s submission that he is not proposing to question the mother directly about the truth or otherwise of the statements but wants only to ask about the mother’s reaction to, or assessment of, those statements does not seem to advance his claim.
Section 44 appears to be aimed at ensuring that material that would not otherwise be admissible in the trial should not be put in evidence by the device of questioning a witness about it.
Section 44(2) explicitly permits cross-examination about a representation that has already been admitted or that the court is satisfied will be admitted.
Section 44(3) provides a method by which a witness can be invited to reconsider the truth of his or her own evidence by reference to the contents of a document but without the contents of the document being disclosed in court.
This suggests to me that the mischief sought to be addressed by s 44 is not limited to the disclosure of the contents of a particular representation through cross-examination of a witness about the truth of the representation, but extends to the disclosure of the contents of the particular representation through cross-examination of a witness about other characteristics of that representation, possibly including the witness’s opinion of that representation.
Stephen Odgers, Uniform Evidence Law (Lawbook Co 10th ed 2012) at 159; [1.2.4180] sets out the explanation given by the Australian Law Reform Commission (ALRC) of its rationale for the proposal on which s 44 was based, as follows:
It would be most undesirable to permit cross‑examination to be carried out using prior statements of persons other than the witness where those statements are not in evidence or will not be admitted in evidence. Where the statement is in evidence or will be received in evidence there is no reason to prevent cross‑examination on the contents of the statements ... Where the statement is not in evidence or cannot or will not be adduced in evidence, the proposal is for the existing law to continue – the witness will be shown the document, asked to read it and state whether he still adheres to his testimony. Against such an approach, it has been argued that such cross‑examination should not be allowed. It may be oppressive to the witness where the document is placed in the witness’s hands and the tribunal of fact may be encouraged to speculate about the content of the document ... The danger must be acknowledged. However, there is power to control cross‑examination, and provided the rules are complied with, the document would not be identified and it would not be possible to infer what is in it. The advantage of this limited cross‑examination is that it can, as it has in the past, assist in establishing the facts. The safeguard is provided, however, of empowering the judge to require production to him of any documents so used and to the other parties. In particular, where the document used contains statements of persons other than the witness, the judge can use this power to ensure that no false impressions are given about the contents of the document. The judge may make such use of it as he thinks fit.
In my view, this explanation makes it clear that, among other things, s 44 is intended to prevent material being selectively put before the jury in a way that might be unfair to the party who called the witness.
Significance of s 45
Section 45 provides that if there is cross‑examination of a witness about a previous representation alleged to have been made by another person that is recorded in a document, the party undertaking that cross‑examination may be required to produce the document, and the court may examine the document, give directions as to its use, and admit it even if it has not been tendered by a party. However, subsection 45(3) does not permit the court to admit into evidence a document that would not be admissible under Chapter 3 of the Evidence Act. That is, s 45 does not permit a document containing a previous representation made by a person to be admitted on the ground that a witness other than that person has been cross‑examined about that previous representation. Rather, s 45 makes it clear that s 44 will only apply if evidence of that representation is otherwise admissible and has been or will be admitted.
Admissibility of family report under s 106
In relation to whether the contents of the family report might be admissible so as to permit cross-examination about those contents, defence counsel submitted that the family report might be admissible under s 106 of the Evidence Act, which is as follows:
106 Exception—rebutting denials by other evidence
(1)The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is presented otherwise than from the witness if—
(a) in cross-examination of the witness—
(i)the substance of the evidence was put to the witness; and
(ii)the witness denied, or did not admit or agree to, the substance of the evidence; and
(b) the court gives leave to present the evidence.
(2)Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness—
(a) is biased or has a motive for being untruthful; or
(b) has been convicted of an offence, including an offence against the law of a foreign country; or
(c) has made a prior inconsistent statement; or
(d) is, or was, unable to be aware of matters to which the witness’s evidence relates; or
(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.
Defence counsel did not submit that I should give leave for the evidence to be admitted, but argued that leave would not be required for the evidence to be admitted under s 106(1) because the evidence would tend to prove that the mother “has a motive for being untruthful” (s 106(2)(a)).
Counsel’s complete argument was not articulated in any detail, and I find it difficult to articulate it myself, but it would seem to require the following steps to be taken:
(a)the substance of the evidence would be put to the mother in cross‑examination under s 106(1)(a)(i);
(b)the mother would deny or not admit or agree to the substance of the evidence (s 106(1)(a)(ii));
(c)the evidence could then be admitted, not by leave, as to which no submissions were made, but on the basis that leave would not be required for the evidence to be admitted under s 106(1) because the evidence would tend to prove that the mother has a motive for being untruthful (s 106(2)(a)).
The fundamental difficulty with this argument is to define the substance of the evidence, as referred to in s 106, in such a way as to make sense of the argument and to identify how that evidence is relevant to the mother’s credibility such that it would be admissible under s 106.
Defence counsel’s argument that s 44 did not apply had begun with the proposition that, having already put to the mother the general proposition that the family report was unfavourable to her, he wanted to put to her, first, that individual specific representations were contained in the report and, secondly, not that the representation concerned was true but that it was unfavourable to her case.
Assuming that the representation put to the mother is correctly put to her from the family report, it seems unlikely that she will dispute the inclusion of that representation in the report. However, based on the evidence she has already given, she may well dispute that the representation is unfavourable to her, expressing instead not a view that the representation was favourable but the view that the representation was incorrect.
Since the representations would not themselves be admissible for their asserted facts, and since defence counsel has made it clear that he does not seek to have the representations admitted for that purpose, disputing the accuracy of the representations is not disputing the first proposition being put to the mother, which is rather that the representations are contained in the report.
Unless the mother denies that the representations are contained in the report, then the fact that those representations are contained in the report could not be admitted under s 106, even if the evidence that the representations are contained in the report were, in fact, relevant to the mother’s credibility. If all that the mother denies is that she thought the representations were unfavourable, then only evidence that she did think they were unfavourable could be admitted under s 106(1). Whether the representations were likely to be unfavourable to the mother must be a matter of opinion rather than a matter for ordinary evidence. So the real matter in dispute is not whether the representations were unfavourable but whether the mother believed them to be unfavourable.
The substance of the evidence put to the mother for the purposes of s 106(1)(a) would be “you knew or believed that this representation was unfavourable”. The only evidence possibly admissible under s 106 would be evidence that the mother did, in fact, know or believe that the representations were unfavourable, assuming that evidence would be relevant to her credibility. Evidence of that kind might be available, for instance, if the mother had admitted to another person that she knew the evidence was unfavourable.
Be that as it may, I am satisfied that evidence of the actual contents of the report would not be admissible under s 106 on the basis that the mother had given evidence that she considered the contents to be inaccurate rather than unfavourable. Evidence that an apparently unfavourable representation was contained in the family report:
(a)is not inconsistent with the mother’s evidence that she believed the report contained inaccuracies;
(b)is not evidence that the mother, in fact, believed the representation to be unfavourable as distinct from inaccurate; and
(c)does not seem to be directly relevant to the mother’s credibility.
Conclusions
Since no basis for the admission of the family report other than s 106 has been suggested, I conclude that s 44(2) does not permit the mother to be questioned about the contents of the family report in a way that would otherwise be prevented by s 44(1).
Other relevant material
If my decision to refuse to allow defence counsel to cross‑examine the mother on the specific contents of the family report needed further support, I would refer to s 135(a) of the Evidence Act, which permits evidence to be excluded if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the party. The existence of a family report, and the fact that it came to the mother’s attention only a few days before the relevant allegations were made, may have some probative value in this matter. Particular representations made in the report, which would not only be untested in this trial but which would, given the purpose for which defence counsel wishes to use them, be deliberately selected from the report on the basis that they were potentially damaging to the mother’s proceedings in the Family Court, would have little probative value compared with the prejudicial effect to the Crown case of permitting the admission of material by definition selected for its prejudicial effect.
I note also that in the context of commentary on s 44, Uniform Evidence Law at 160; [1.2.4220] quotes from a later ALRC Report as follows:
Where a judge is concerned that counsel is confusing or misleading the court or jury by questioning a witness on a previous representation of another person that is inadmissible (or Counsel does not intend to tender) he or she may call for the document to be produced under section 45 (1) (b) and give directions as to its use. A judge could also presumably refuse to allow the document to be put to the witness under the general power in section 26 to control the questioning of witnesses.
Determination
I shall not permit the mother to be cross-examined about the specific contents of the family report.
Any further cross-examination about the general impact of that report will need to be considered carefully in the light of commentary on the operation of s 44. That seems to suggest that the trial judge needs to control questioning very carefully to ensure that otherwise inadmissible material is not revealed in the course of permissible cross‑examination. Nor have I come across any suggestion in this context that the court’s power to limit the use of evidence under s 136 of the Evidence Act would be adequate to prevent prejudice potentially arising from the use of otherwise inadmissible material under s 44.
Other matters
In the light of this decision, I need not address the second question raised by the prosecutor about whether the family report was in any case available to be used in these proceedings.
| I certify that the preceding thirty-nine (39) 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) |
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