The State of Western Australia v JSC
[2016] WADC 98
•30 JUNE 2016
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JSC [2016] WADC 98
CORAM: LEVY DCJ
HEARD: 27 JUNE 2016
DELIVERED : 30 JUNE 2016
FILE NO/S: IND 1859 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JSC
Catchwords:
Child witness - Sexual offences - Recalling of a child witness after pre-recording completed - Prior inconsistent statements - Section 21 of Evidence Act 1906 - Section 106T of Evidence Act 1906
Legislation:
Evidence Act 1906 (WA) s 21, s 22, s 106E, s 106K, s 106N, s 106T
Result:
Application allowed
Representation:
Counsel:
The State of Western Australia : Mr D Krueger
Accused: Ms L Boston
Solicitors:
The State of Western Australia : Director of Public Prosecutions
Accused: Lisa Boston
Case(s) referred to in judgment(s):
B G S v The State of Western Australia [2016] WADC 55
Browne v Dunn (1893) 6 R 67
MWJ v The Queen (2005) 222 ALR 436; (2005) 80 ALRJ 329; [2005] HCA 74
Narkle v The Queen [2001] WASCA 31
R v JGO (Unreported, NSWSC, Library No 60074 , 5 December 1996)
R v Lubemba; R v Pooley [2015] 1 Cr App Rep 137; [2014] EWCA Crim 2064
R v Masters (1992) 59 A Crim R 445
R v Wills [2011] EWCA Crim 1938; [2012] 1 Cr App R 2
Reid v Readdy [1999] WASCA 208
Tanner v The Queen [2001] WADC 207
The State of Western Australia v RAJ [2014] WADC 108
transcript, The State of Western Australia v SGH, District Court of Western Australia, 21 September 2015
LEVY DCJ: JSC stands charged on indictment 1859 of 2015 with the offence that between 30 November 2012 and 1 March 2013 at Parkwood, he sexually penetrated KSC, a child who he then knew to be his lineal relative, by penetrating her anus with his finger or thumb.
The complainant, KSC, is alleged to have been aged between 9 and 10 years at the time of the offence.
The complainant was initially interviewed by child interviewers in a visually recorded interview on 24 July 2014.
On 10 June 2016 the complainant's evidence was taken at a 'pre‑recording'. (Note: It appears from my reading of the court file and relevant transcript that no formal orders were ever made for there to be a pre‑recording of the child's evidence or for the procedures to be employed in relation to that process pursuant to s 106E, s 106I, s 106K or s 106N of the Evidence Act 1906 (WA). These reasons proceed on the basis that if an order for a pre‑recording has not been made, it will be made retrospectively). The pre‑recording included further questions in examination‑in‑chief, cross‑examination by the accused's counsel and some re‑examination.
JSC's trial was listed to commence before a judge and jury in the District Court on 23 June 2016.
Application to have complainant - child witness - recalled
As already noted above, the complainant gave evidence at a pre‑recording conducted on 10 June 2016. The accused now makes an application to have KSC recalled for the purposes of further cross‑examination.
The State's case against Mr Collard and the brief for prosecution
The prosecution's case against the accused is that he offended against the complainant who is his biological daughter. The complainant's mother and the accused were separated and did not live at the same address. From time to time the complainant spent time at her father's home.
The prosecution alleges that on a weekend morning in summer, sometime between 30 November 2012 and 1 March 2013, the accused and the complainant were lying on a mattress in the lounge room of the accused's home situated in Parkwood. The prosecution alleges that whilst on the mattress, the accused digitally penetrated the complainant's anus with either his finger or thumb. It does not appear to be in issue that the complainant did not complain to anyone about the events the subject of the charge until many months later. According to the complainant, the first person that she told was her older brother's girlfriend, TLS. In the visually recorded interview with the complainant she was asked as follows:
Q: Okay, what did you tell [TLS]?
A: Exactly what happened.
Q: Yep, so what's – what's that?
A: What I just told you (see prosecution brief, page 34).
The prosecution brief also contains the statement of TLS. In that statement, TLS confirms that she was indeed the girlfriend of the complainant's older brother, JRC. She said that she had become quite close to the complainant who was some eight years younger than she was. She was 'like a big sister to her'. According to TLS, on a day in June 2014 she had a conversation with the complainant. The conversation arose in the context where they were discussing sexual abuse within families. TLS said (page 4 brief for prosecution) that she had said to the complainant 'I hope nothing like that ever happens to her [sic]'. TLS says in her statement that during the conversation the complainant told her a number of things including that:
·She was at her Dad's house in Lynwood
·It happened at a time when she was living in Huntingdale
·She was at home by herself with her father and was laying on a mattress in the lounge room
·It was early in the morning
·She said that her father thought she was asleep and came and lay down behind her
·He put his hands down the back of her pants and started rubbing her 'areas'
·Her father got up and walked away
(Pages 4 – 5 of the brief for prosecution)
During the pre‑recording, the complainant was asked a series of questions relating to the conversation that she had had with TLS. Those questions were obviously designed to explore both the circumstances in which she had come to make the allegations and the substance of what was actually said. Counsel for the accused had clearly formed the view that what TLS had recorded in her statement about what she was told by the complainant was inconsistent with the evidence given by the complainant during her visually recorded interview on 24 July 2014, and inconsistent with the evidence given at the pre‑recording. In particular, during her initial interview on 24 July 2014 the complainant had said that she had been lying in bed with her father and he was cuddling her when he put his hands down her pants (see page 25, brief for prosecution). She explained in that interview that he had inserted his fingers into her anus and was also wiggling them and twirling his fingers in her bottom (see page 29, brief for prosecution). According to the complainant, this occurred when they were already lying in bed together (see page 25, brief for prosecution).
At the pre‑recording on 10 June 2016, she was asked to clarify events and said that she was lying on a mattress at the time. She said that she had previously been on the couch and had then moved onto a mattress (ts 98, 10 June 2016, examination‑in‑chief). She said at the time it happened, she was lying on the mattress cuddling her father and that she was watching television (ts 99, 10 June 2016, cross‑examination).
Later in cross‑examination, counsel for the accused had asked about the conversation that the complainant had had with TLS. According to the complainant, she had told TLS all the things that she had said in her initial interview on 24 July 2014. Counsel for the accused then went through those things generally. The cross‑examination included the following (ts 109, 110, 10 June 2016):
Q: You said to [TLS] that 'He or dad touched me inappropriately?
A: Dad.
Q: Yes. What else did you say?
A: I don't really remember.
Q: Okay. Because you say that you said all the same things as the interview?
A: Yes.
Q: But now you are saying you don't remember what you said?
A: Yeah. Well, it was somewhere along the lines of what I said in the interview cos I told her everything.
Q: You told her everything? So you – you – you told her how you were at home with your dad?
A: Yes cos she asked all the questions.
Q: And you told her how you and your dad were lying on a mattress in the lounge room?
A: Yes.
Q: And you told her how you thought it was early in the morning?
A: Yes.
Q: And you told her how your dad put his hands down the back of your pants and started rubbing your areas?
A: Yes.
Q: And you told her how your dad had inserted two fingers into your bum?
A: Yes.
Q: And how he moved them around?
A: Yes.
Q: So these are all the things that you have told [TLS]?
A: Yes.
Q: And then you told her how your dad got up and then went and had a shower?
A: Yeah, that was pretty much all.
Q: Okay. Did you tell her – well, did you tell her anything other than those things? --
A: No.
Q: Is there any of the things that I have asked you about that you might not have told her?
A: No.
History of the application to have the complainant recalled
On the morning of the first day listed for the trial of the accused, before the trial commenced, counsel for JSC raised an issue, namely that counsel for the State had indicated that he no longer intended to call TLS as a witness at the trial. Counsel for trial, who had not appeared as counsel at the pre‑recording, had indicated that he had formed the view that TLS could not be called by the State because the complaint made to her could not be categorised as a being a 'recent' complaint. On the version of events related in TLS's statement, the complaint to her had been made in June 2014. On that basis, the complaint had not been made until, at the earliest, 15 months after the offence in question. Furthermore, the evidence solicited in cross‑examination of the complainant revealed that the only reason that the complaint had not been made earlier was because, according to the complainant, the issue had never been brought up before. The complainant had had an opportunity to speak to numerous people in the intervening period including her mother and other relatives.
Counsel for the accused submitted to the court that the prosecution should still call TLS albeit that she could not give evidence as a witness relating to a 'recent' complaint. Counsel for the accused pointed out that her cross‑examination of the complainant during the pre‑recording had proceeded on the basis that the State had indicated that they intended to call TLS as a witness at the trial. In the circumstances, counsel for the accused submitted that the State's indication that they now did not intend to call TLS, such indication being made after the cross‑examination of the complainant had been completed, created an unfairness in the trial process. Counsel for the accused further submitted that if the accused was required to call the TLS in his case that would expose her to cross‑examination and might prejudice the accused's defence. There were aspects of TLS's statement that were said to be prejudicial, namely her opinion of the accused's behaviour. Without making a final ruling on this point, I am not at this stage convinced that the opinion of TLS about the accused's behaviour would be admissible. In any event, it is not necessary for the purposes of this application to make any ruling on that issue.
During the course of the submissions, I raised for the consideration of both the prosecution and the defence that TLS may not be able to be called as a witness to prove a prior inconsistent statement at this stage as it appeared to me that counsel for the accused had not complied with s 21 of the Evidence Act 1906. Although counsel for the accused had put some questions to the complainant relating to the complaint made to TLS, in my view counsel had not identified with any particularity the things contained in TLS's statement, or relevantly, things allegedly not said to TLS, which was said to be inconsistent with the complainant's evidence.
Not only does fairness dictate that if a witness' credit is to be later impugned by calling another witness to prove an inconsistent statement that the witness should be given the opportunity to comment on the alleged inconsistency, but in my view s 21 of the Evidence Act requires the inconsistency to be identified.
Section 21 of the Evidence Act enables any witness under cross‑examination to be asked whether they have made a former statement relevant to the subject matter of the proceeding, and inconsistent with their present testimony. Whilst the circumstances of the supposed statement being referred to were sufficient to designate the particular occasion of the statement, the alleged inconsistency or inconsistencies were not identified. It is the particularisation of the inconsistency that was lacking during the cross‑examination of the witness.
If a witness does not admit that they made the statement said to be inconsistent, proof may be given that they did in fact make it. During the course of cross‑examination the complainant was not specifically taken to any alleged prior inconsistent statement she had made. All that had been done was to effectively get the complainant to confirm her prior consistent statements which had been made at an earlier time in either the course of her evidence or at the initial interview on 24 July 2014.
The accused's application to have the complainant recalled followed upon the discussion relating to counsel's failure to effectively lay the ground work for evidence of a prior inconsistent statement to be led through TLS. In order to cure the problem, counsel for the accused made an application to have the child complainant recalled so that the alleged prior inconsistencies could be put to her. Counsel for the State requested that he be given an opportunity to consider the prosecution's position before making any submissions on the matter. Ultimately the matter was adjourned for a directions hearing before me on Monday, 27 June 2016.
Prior to the resumption of the application, counsel for the accused filed written submissions in support of the application. Those submissions are detailed and comprehensive. In essence, the application is brought on the basis that it is fundamental to the accused's defence that the alleged prior inconsistent statements be put to the complainant so that the pre‑conditions for calling TLS to prove the prior inconsistent statements can be met. The accused submits that in a case such as this where the State concedes that its case will stand or fall on the evidence of the complainant, credibility is of critical importance. The accused submits that this is a case where there will be no other evidence upon which the accused could be convicted. The accused distinguishes his case from that of cases such as Narkle v The Queen [2001] WASCA 31.
The accused submits that leave should be granted to have the complainant recalled for the purposes of putting the conversation contained within TLS's statement set out at par 2 – 28 of the State's brief, page 5. The accused submits that that conversation is inconsistent with the child interview conducted with the complainant on 24 July 2014. It is also submitted that it is inconsistent with the evidence given by the complainant on 10 June 2016, pages 109 – 110, specifically the accused says that it is essential that the following matters be raised in cross‑examination:
(a)when the complainant first recounted the alleged offence to TLS, she did not allege that she was penetrated; and
(b)that when the complainant first recounted the alleged offence to TLS, she asserted that the offending occurred in the context where her father thought she was asleep, whereas in the pre‑recording on 10 June 2016, she alleged that she was awake and watching television when it occurred.
The above two alleged inconsistencies are said to be of such significance that they could rationally affect the jury's assessment as to whether the complainant was accurate, reliable and truthful.
The law relevant to child witnesses
The Evidence Act 1906 contains a number of provisions relevant to child witnesses in criminal proceedings. These sections include:
106HA deals with the video recording of interviews with children and persons with mental impairment
106HBrelates to the admissibility in criminal proceedings of the visual recording of interviews with children or persons with mental impairment
106Ideals with applications for directions relating to the visual recording of children's evidence and in particular, allows a prosecutor to make an application for orders:
(b) that the whole of the effected child's evidence (including cross‑examination and re‑examination) be –
(i)taken at a special hearing and recorded on a visual recording; and
(ii)presented to the court in the form of that visual recording, and that the effected child not be present at the proceeding.
106Krelates to special hearings to take and record a child's evidence in full
106Nrelates to arrangements to be made or used for the giving of evidence by an effected child and includes the giving of evidence by the child in the court precinct but outside the court room and that the evidence be transmitted to the court room by means of a video link, or for the accused to be held in a room apart from the court room and the evidence to be transmitted to that room by means of a video link (see s 106N(2)(a) and (b)). Furthermore, pursuant to s 106N(3a) where arrangements are made under s (2a) or (b), the effected child's evidence is to be recorded on a visual recording.
106Trelates to the use of recordings made under s 106K or s 106N.
106T relevantly includes the following:
(1)Evidence of an affected child recorded on a visual recording under section 106K or 106N in relation to a Schedule 7 proceeding is admissible in any hearing in relation to that proceeding to the same extent as if it were given orally in the hearing in accordance with the usual rules and practice of the court concerned; and
(3)a Judge of a court before which it is proposed to adduce evidence on a visual recording under (1), (2), (2a) or (2b) in a hearing may order that the affected child or special witness or witness, as the case may be, attend the court for the purposes of giving further evidence in clarification of the evidence on the visual recording.
The above sections and relevant applications relate to proceedings for an offence which is listed under sch 7 of the Evidence Act. This includes the offence for which the accused has been charged, namely an offence contrary to s 329(2) of the Criminal Code.
In transcript, The State of Western Australia v SGH, District Court of Western Australia, 21 September 2015, 154, Sleight CJDC said:
One of the main reasons for the pre‑recording of a child's evidence is to facilitate the giving of evidence of a child as soon as possible after the alleged offence. The procedure contained in s 106T(3), for recalling a child after the pre‑recording is completed is exercised very rarely by this court. There is good reason for this.
If the practice was allowed that children were regularly recalled after pre‑recording had been completed, the benefits of a pre‑recording of a child's evidence would be lost. There would be delays and there would be an increase in trauma as a result of the child having to come back to court to give further evidence.
Further, importantly, I believe it would create a potentially unfair advantage to an accused person by giving the accused counsel an opportunity to ask further questions after given time to reflect the responses given by a child witness at a pre‑recording.
Further, it would increase the risk of a child becoming confused with the passage of time and giving inconsistent answers upon which the child could rely.
His Honour the learned Chief Judge then went on to consider a number of other authorities where this court had considered applications for the recalling of a child witness after a pre‑recording had been completed. Those other cases included Tanner v The Queen [2001] WADC 207 and The State of Western Australia v RAJ [2014] WADC 108. In the case of Tanner v The Queen, his Honour L A Jackson granted an application seeking to have the complainant's recalled for further cross‑examination. In that case the complainants were aged 16 and 17. That case is somewhat different to the present circumstances. In Tanner v The Queen, the application to have the complainants recalled was one made at the retrial of the accused. His Honour L A Jackson was of the view that because it was a retrial, to prevent the recall of the complainants would limit the essential nature of a retrial. The learned Chief Judge in the reasons given the matter of The State of Western Australia v SGH did not necessarily share the same view as that of his Honour L A Jackson. Sleight CJDC noted that the provisions of the Evidence Act relating to the recording of children's evidence at trial suggests that it was not confined to trials at first instance.
In the latter case of The State of Western Australia v RAJ, his Honour Judge Keen dismissed an application to have the complainant recalled for further cross‑examination. In doing so, his Honour Judge Keen noted that the interests of justice were paramount and involved both fairness to the accused and the complainant. His Honour Judge Keen noted that the provisions of the Evidence Act were put in place to assist children and special witnesses in the giving of their evidence. His Honour went on to say that:
Accordingly, while s 106T does not prevent the recalling of a witness, it does suggest the limitation in accordance with (3). Whilst I accept the defence argument that it is a question of balancing the degree of imposition to the child and the need for doing so to ensure that there is a fair trial, I also accept the State's submission that it should not be allowed simply because counsel did not get it right in the first place, or as Mr Elliott put it, things that Mr Barber was less than happy about leaving out.
To go outside s 106T(3) would require, in my view, some very special circumstances.
In The State of Western Australia v SGH, the learned Chief Judge then went on to consider a number of English decisions, specifically the decision of R v Lubemba; R v Pooley [2015] 1 Cr App Rep 137; [2014] EWCA Crim 2064 and the decision of R v Wills [2011] EWCA Crim 1938; [2012] 1 Cr App R 2. In the English decisions, the court considered evidence given by a child or young witness. The English courts have made it clear that the normal rules and practice relating to the cross‑examination of a witness need to be adapted and varied when dealing with vulnerable witnesses including children.
The approach of the court in R v Wills was adopted by the Lord Chief Justice in England in the Criminal Practice Directions Amendment No 2 as best practice. The Directions include the following:
All witnesses, including the defendant and defence witnesses, should be enabled to give the best evidence they can. In relation to young and/or vulnerable people, this may mean departing radically from traditional cross‑examination. The form and extent of appropriate cross‑examination will vary from case to case. For adult non‑vulnerable witnesses an advocate will usually put his case so that the witness will have the opportunity of commenting upon it and/or answering it. When the witness is young or otherwise vulnerable, the court may dispense with the normal practice and impose restrictions on the advocate 'putting his case' where there is a risk of a young or otherwise vulnerable witness failing to understand, becoming distressed or acquiescing to leading questions. Where limitations on questioning are necessary and appropriate, they must be clearly defined. The judge has a duty to ensure that they are complied with and should explain them to the jury and the reasons for them. If the advocate fails to comply with the limitations, the judge should give relevant directions to the jury when that occurs and prevent further questioning that does not comply with the ground rules settled upon in advance. Instead of commenting on inconsistencies during cross‑examination, following discussion between the judge and the advocates, the advocate or judge may point out important inconsistencies after (instead of during) the witness's evidence.
(Vulnerable Witnesses & Children WG Report Final March 2015)
The judge should also remind the jury of these during summing up. The judge should be alert to alleged inconsistencies that are not in fact inconsistent, or are trivial.
This approach seems to me to suggest that in some ways the normal rules relating to the putting of prior inconsistent statements, where a young or vulnerable witness is involved, can be circumvented. I am not sure to what extent, if any, that the law relating to proving prior inconsistent statements as set out at s 21 and s 22 of the Evidence Act can be circumvented. I do note that this court has published guidelines for cross‑examination of children and persons suffering a mental disability. Those guidelines include:
2.11In cases where the witness clearly is incapable of understanding inconsistencies and the inconsistencies only go to the issue of reliability, counsel should give consideration to limiting or abandoning cross‑examination on otherwise proven inconsistencies. In such cases counsel should seek a ruling from the trial Judge as to whether proven inconsistencies can be relied upon in the closing address without comment that the inconsistencies were not the subject of cross‑examination.
(see District Court of Western Australia circular to practitioners CRIM 2010-1, date of issue, 8 September 2010)
In my view, with the greatest of respect to the learned Registrar, the above circular to practitioners may be inconsistent with s 21 and s 22 of the Evidence Act. In any event, the potential inconsistency between the District Court circular to practitioners relating to guidelines for cross‑examining of children and persons suffering a mental disability with the provisions of s 21 and s 22 of the Evidence Act do not need to be considered in the present case because there is no suggestion that the complainant did not or could not understand the questions relating to prior statements said to have been made to TLS on an earlier occasion. I form this view having carefully read the transcript of the child interview on 24 July 2014 as well as the evidence given by the complainant on 10 June 2016.
I also note that the learned Chief Judge of this court further considered the English authorities in B G S v The State of Western Australia [2016] WADC 55 in the context of an application by defence counsel for an order that an accused not be prevented from putting a defence by electing not to cross‑examine child complainants. In that case the accused accepted that the complainants had been abused, but denied that he was the perpetrator. The issues in that case were confined to whether the accused would be prevented from relying upon a defence that the complainants had conflated their experiences by effectively superimposing the accused for the real offender.
In BGS v The State of Western Australia, Sleight CJDC reviewed numerous authorities including those referred to above, as well as Browne v Dunn (1893) 6 R 67 and MWJ v The Queen (2005) 222 ALR 436; (2005) 80 ALRJ 329; [2005] HCA 74. Ultimately Sleight CJDC concluded that the rule in Browne v Dunn did not apply to that case and that the defence could still put its case to the jury without cross‑examination of the complainants on the issue.
The issue before me is not whether the accused can run his defence, but rather whether he be permitted to further cross‑examine the complainant for the purposes of reinforcing his defence.
The law relating to the re-calling of a witness
The authorities relating to an application to have a witness recalled generally confirm that a trial judge should ordinarily accede to a request to have a witness recalled for cross‑examination upon a point of substance which may have been overlooked. This includes cases where failure to put the matter of substance is due to incompetence. Generally speaking, unless there is a 'real and incurable prejudice' to a party, the court should accede to such an application: Reid v Readdy [1999] WASCA 208, R v JGO (Unreported, NSWSC, Library No 60074 , 5 December 1996), R v Masters (1992) 59 A Crim R 445.
In my view, the general principles relating to the recalling of a witness need to be considered in light of the special provisions relating to the recording of child witnesses, particularly in cases involving allegations of a sexual nature said to have been perpetrated against a child. In my view, in an appropriate case, notwithstanding the general principles that apply to the recalling of witnesses, it may be the case that the recalling of a child to give evidence following a pre‑recording may result in such oppression, distress, humiliation or embarrassment that the additional cross‑examination sought to be elicited in the trial, when compared to the probative value to be achieved, could be such that the interests of justice would require such an application to be refused.
The application of the law and principles to the present facts
Of significance in this case is that the State does not oppose the application for the recalling of the complainant. That concession seems, with respect to the learned prosecutor, to be an appropriate one in the circumstances. The circumstances in this case include:
1.That the pre‑recording of the child witness was conducted a little more than two weeks prior to the application for the child to be recalled.
2.The further cross‑examination sought to be pursued by the accused's counsel is limited to two finite areas, none of which would in themselves give rise to any significant distress, embarrassment or humiliation. No other issue has been identified by the State.
3.Counsel for the accused candidly concedes that the failure to put the relevant cross‑examination amounting to potential prior inconsistent statements was a matter of oversight. In the circumstances it would be unfair to prejudice the accused due to that oversight.
4.The central issue at trial will be the complainant's credibility. I accept that if the complainant either accepts what TLS says she was told by her, or alternatively, denies the account set out in TLS's statement and TLS subsequently confirms such an account, those prior inconsistencies may be of such weight as to cause the jury to either question or reject the complainant as a witness of truth or reliability.
5.The complainant is now 13 years old. There is no reason to believe that she will either fail to understand the questions about the potential prior inconsistent statements or be so confused that any answer she may give may unduly prejudice the State's case.
Conclusion
In all the circumstances I am of the view that it is in the interests of justice that the complainant be recalled for the limited purpose of being asked questions that relate to the potential prior inconsistent statements identified and set out by counsel for the accused in her written submissions filed on 25 June 2016 (par 7.1 and 7.2).
Finally, I note that it is not appropriate at this stage to make any rulings relating to the original issue raised by counsel for the accused, namely the State's foreshadowed refusal to call TLS at the trial. That issue is best left for resolution until after the complainant has been recalled and cross‑examined.
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