The State of Western Australia v JPH
[2018] WADC 145
•31 OCTOBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JPH [2018] WADC 145
CORAM: DAVIS DCJ
HEARD: 28 SEPTEMBER 2018
DELIVERED : 28 SEPTEMBER 2018
PUBLISHED : 31 OCTOBER 2018
FILE NO/S: IND 574 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JPH
Catchwords:
Criminal law - Evidence - Admissibility of statement of compliance made and recorded in the United Kingdom - Turns on own facts
Legislation:
Evidence Act 1906, s 106H
Result:
Statement admissible pursuant to, s 106H Evidence Act 1906
Representation:
Counsel:
| Applicant | : | Ms G Colborne |
| Accused | : | Mr S Rafferty |
Solicitors:
| Applicant | : | The State Solicitor for Western Australia |
| Accused | : | Shamus Rafferty Barristers and Solicitors |
Case(s) referred to in decision(s):
RPM v The Queen [2004] WASCA 174
State of Western Australia v AETR [2017] WADC 125
The State of Western Australia v GRB [2015] WADC 75
The State of Western Australia v RLM [2018] WADC 14
DAVIS DCJ: [This decision was delivered extemporaneously on 28 September 2018 and edited from the transcript]
The accused, who worked as a teacher, has been charged with a number of offences of sexual offending against three different complainants, all children, at the relevant time, and all former students at the school where the accused taught. The offending is alleged to have taken place on various occasions between February 2012 and August 2015.
Most of the charges relate to alleged offences against the complainant, CRH. These concern alleged sexual offending at a time when the accused was CRH's school principal, and two occasions after the accused had moved to the United Kingdom, but then returned to Perth for a holiday.
Subsequently, when the accused was living in London, the accused and CRH kept in touch. In mid-2016 CRH visited the accused in London and a sexual relationship between the two of them continued. While in London CRH read about child sexual abuse on the internet and came to realise that his relationship with the accused was sexual abuse. CRH decided to report the abuse to the police in the UK.
After CRH made his formal complaint the next day, 14 June 2016, CRH was interviewed by a police officer from the Child Abuse Investigation team attached to the police station. That interview was recorded and transcribed. I will refer to this as the UK interview. CRH was 16 years old at the time of that interview.
Later, on his return to Western Australia, CRH made a formal complaint to the WA Police. He was aged 17 at that time. At all relevant times, therefore, CRH was an affected child within the meaning of s 106A and 106H (3)(b) of the Evidence Act 1906.
The State has applied for an order that the UK interview be admitted at the trial of the accused as a relevant statement pursuant to s 106H of the Evidence Act.
Section 106H deals with statements made by an affected child whether the statement is recorded in writing or electronically or not, but does not include a visually recorded interview.
The history of s 106H was set out in RPM v The Queen [2004] WASCA 174. The section was one of a number of amendments to the Evidence Act made to implement the recommendations of the Western Australian Law Reform Commission on its report on Evidence of Children and Other Vulnerable Witnesses released on 10 May 1991.
The amendments recognise that children and other vulnerable witnesses may have difficulties in giving evidence in open court. In some situations there was potential trauma for the witness of having to repeat a statement, for example, making a statement to police officers and then recounting the same events in court. The intention of the amendments, including s 106H, is to widen the circumstances in which the statements of children about sexual abuse can be heard by a court: RPM v The Queen [46] – [49] (Malcolm CJ); [125] (Wheeler J); [171] (McKechnie J).
For a statement to be considered a 'relevant statement' within the meaning of s 106H, it must:
(a) relate to a matter in issue in the proceedings; and
(b) must be made by the child to another person before the proceeding was commenced: s 106H(3).
For such a statement to be admissible:
(a) the accused must have been given either a copy of the statement or details of its contents;
(b) the accused must be afforded the opportunity to cross-examine the affected child; and
(c) the evidence of the making and content of the statement is to be given by the person to whom the child made the statement.
If these conditions cannot be met, the statement is not admissible: RPM [126] (Wheeler J); [173] (McKechnie J).
If the conditions are met, the onus is on the State to persuade the court to exercise its discretion in favour of the admissibility of the statement: RPM [67] (Malcolm CJ).
I am satisfied that the statement made by CRH is a relevant statement. It relates to matters in issue in the proceeding and it was made by CRH to another person before the proceeding was commenced.
The accused has been given a copy of the transcript of the transcript of the UK interview and is therefore aware of the details of its contents. The accused will also be given the opportunity to cross‑examine CRH.
Further, the State has advised that the police officer from the UK who conducted the interview of CRH, will be called to give evidence as to the making of the UK interview and of its content by playing the recording. The statement is therefore admissible subject to the exercise of my discretion as set out in s 106H(1).
The discretion as to whether to admit a relevant statement is a broad one. In The State of Western Australia v GRB [2015] WADC 75, I set out the factors to be taken into account in the exercise of the discretion. These include:
(a) whether the complainant has given any evidence at all in relation to the matters the subject of the indictment. (In RPM where the complainant found himself unable to give any relevant evidence about the alleged offences, Malcolm CJ at [50] expressed the opinion that for that reason alone it was appropriate to admit the statement under s 106H);
(b) the circumstances in which and the process by which the relevant statement was taken;
(c) whether there was any discussion with the child about the purpose of the statement and the need to tell the truth;
(d) whether the statement has been elicited by the use of leading questions or otherwise in circumstances which strongly suggest the contents were not in reality the statement of the child at all;
(e) whether there was present at the time of questioning anyone whom the child may have wished to please or influence by the responses which the child gave;
(f) the probative value of the statement;
(g) whether there is a degree of unfairness to the accused which could not be cured even by an opportunity to cross-examine or appropriate directions from the trial judge; and
(h) whether there is the opportunity for the State to undertake a further visually recorded interview with the complainant.
These factors were applied by his Honour Judge Troy in two cases, The State of Western Australia v AETR [2017] WADC 125 and The State of Western Australia v RLM [2018] WADC 14. These factors are, of course, not exhaustive and there may be other relevant issues to take into account when considering the exercise of discretion.
Applying the applicable factors in this case:
(a) CRH has not yet given any evidence in the proceeding. The trial has been listed to commence on 2 April 2019. CRG will be called as a witness at trial to give evidence. The purpose of the application by the State is so that the UK interview can be played and form part of CRH's evidence-in-chief and then he can give additional evidence to clarify and particularise the contents of the UK interview. Effectively the procedure proposed is the same as if the UK interview was admissible as a visually recorded interview pursuant to s 106HA. For the reasons which follow, I am of the view that to utilise this procedure is both sensible and in the interests of CRH and would lead to no unfairness to the accused.
(b) The circumstances in which and the process by which CRH's statement was taken by a police officer from the Child Abuse Investigation Team, was very similar to the way a visually recorded interview would be conducted in Western Australia.
(c) Although not recorded in the transcript of the interview, I am informed by the State and accept that on the recording itself at the beginning of the interview the UK police officer advised CRH of the importance of telling the truth. The interview was, of course, conducted in a formal environment and I accept the State's submission that the importance to tell the truth must have been apparent to CRH.
(d) The UK interview has been recorded. The questioning process is entirely transparent and, having read the transcript of the UK interview, I am satisfied that the questioning is appropriate and CRH's evidence has not been elicited in any unacceptable way. There is also no risk that the contents of CRH's answers have been inaccurately reported. I have been informed by the State that any inadmissible material can be edited out of the UK in interview and it is anticipated that those edits can largely be agreed upon.
(e) There was only CRH and the interviewing police officer present during the UK interview. There was no one else present during the time of the questioning whom CRH may have wished to please or influence.
(f) The probative value of the UK interview is, in my view, significant.
(g) There is no unfairness to the accused which could not be cured by the opportunity to cross-examine or appropriate directions from the trial judge. I accept the State's submission that really the accused is in no different position than he would have been had CRH complained to the West Australian Police and a visually recorded interview conducted in this State, instead of in the UK.
(h) While there is the opportunity for the State to undertake a further visually recorded interview with CRH, in my view that is neither necessary nor desirable. Orders have already been made for CRH's evidence to be pre-recorded, with him to give evidence in a separate room removed the courtroom and with a support person present. That was a ruling made by his Honour Judge Prior on 20 August 2018.
One of the reasons why the orders I have set out in [19](h) were made was that his Honour Judge Prior found that CRH's wellbeing had been significantly impacted by the alleged offences and he is a vulnerable witness. Indeed, he has a recent history of self-harm. Judge Prior was also satisfied that the proceedings are already very stressful for CRH and he will require intensive support before and when he gives his evidence.
I am satisfied both from the reasons given by his Honour Judge Prior and the other information on the brief file that to require CRH to undertake another interview to canvass the same matters as set out in the UK interview can only exacerbate his stress. This is a situation where it would be appropriate to reduce the potential trauma for him in having to unnecessarily repeat his statement: RPM [125].
There are two other relevant factors which the State has raised which I consider to be important in the exercise of discretion in this case.
The first is that the geographical location of CRH at the time he made his complaint should not disadvantage him. The UK interview was conducted at a time when he felt capable of speaking about the abuse. Had CRH been in Western Australia at the time, he would have been able to participate in a visually recorded interview at the earliest opportunity following his complaint. It would be unfair to him if his geographical location at the time disadvantaged him in this proceeding.
Secondly, when the prerecording of the evidence of CRH takes place in this matter, he will be more than two years older than he was at the time of the UK interview. I accept the State's submission that given the nature of the allegations it is important that the jury obtains an impression of CRH as he was at the time or close to the time of the alleged offending, and that can be achieved by playing the UK interview.
Accordingly, I am satisfied that the UK interview should be admitted at the trial of the accused and form part of CRH's evidence‑in‑chief.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
ASSOCIATE TO JUDGE DAVIS31 OCTOBER 2018
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