AF v R

The statutory scheme for the giving of evidence by a cognitively impaired person

1. The provisions within Ch 6 Pt 6 of the Criminal Procedure Act, headed "Giving of evidence by vulnerable persons" and comprising ss 306M-306ZP, are relevant to the present application. "Vulnerable person" is defined to mean "a child or a cognitively impaired person": s 306M(1).
2. The complainant has a "cognitive impairment" on the basis that she has a "severe mental illness" which is included in the definition of a "cognitive impairment" in s 306M(2). She is therefore a "cognitively impaired person" within the meaning of that term in s 306M(1). No question was raised in the present application about her Honour being satisfied as to this matter.
3. Section 306P(2) provides that "to the extent that this Part applies to cognitively impaired persons, this Part applies (unless a contrary intention is shown) in relation to evidence given by a cognitively impaired person in the manner provided by this Part only if the court is satisfied that the facts of the case may be better ascertained if the person's evidence is given in such a manner".
4. Division 3 (ss 306R-306Z) is headed, "Giving evidence of out of court representations". It applies to "evidence of a previous representation of a vulnerable person made in the course of an interview during which the person is questioned by an investigating official in connection with the investigation of the commission or possible commission of an offence": s 306R(1).
5. Section 306S provides that a vulnerable person may give evidence, wholly or partly, (a) of a previous representation in the form of a recording of the making of the representation during the course of an interview (per s 306R(1)); (b) orally in the courtroom; or (c) by way of closed-circuit television (per Div 4).
6. Section 306U establishes an entitlement for a vulnerable person to give evidence in chief of a previous representation by way of a recording made by an investigating official of the interview in which the representation was made. Notwithstanding that entitlement, a vulnerable person must not give evidence by such means if the court orders that they not be used: s 306Y(1). "The court may only make such an order if it is satisfied that it is not in the interests of justice for the vulnerable person's evidence to be given by a recording": s 306Y(2).

Grounds of appeal

1. The applicant relied upon the following amended grounds of appeal: 1. (Abandoned prior to the hearing.) 2. Her Honour erred by failing to take into account all relevant factors in considering the test set out in s 306P(2) of the Criminal Procedure Act, when determining if the facts of the case could be better ascertained by the complainant's evidence being given by way of a recording. 2A. Her Honour erred in failing to give adequate reasons for her findings pursuant to s 306P. 3. Her Honour erred in finding that the interview the complainant participated in on 24 October 2013, was an interview taken by an investigating official in connection with the investigation of the commission or possible commission of an offence (see s 306R(2) of the Criminal Procedure Act). 4. Her Honour erred in construing s 306R of the Criminal Procedure Act in a manner that placed an onus on the accused. 5. Her Honour erred in not making a finding under s 306Y of the Criminal Procedure Act that it is not in the interests of justice for the complainant's evidence to be given by way of a recording. 5A. Her Honour erred in failing to give adequate reasons for not making an order under s 306Y.
2. At the hearing, counsel for the applicant accepted that grounds 2A and 5A added nothing; success depended upon him making good any of grounds 2, 3, 4 or 5.
3. There is, however, a fundamental difficulty concerning the question of whether the matter properly comes within the ambit of s 5F of the Criminal Appeal Act at all. I will turn to that issue directly but will first state the conclusions I have arrived at after a consideration of the submissions in support of the grounds. In short, I am unpersuaded that any of the asserted errors are made out.
4. As to ground 2, it was well open to Payne DCJ to be satisfied of the "facts of the case may be better ascertained" requirement in s 306P(2). The expert evidence, which was not challenged, strongly supported such a conclusion. The presence of any inconsistencies or inadequacies in the complainant's account in the recorded interview, or any contamination that might be thought to be discernible, did not mandate a conclusion to the contrary. As a practical reality, it might be thought highly likely that such issues would be explored regardless of the manner in which the complainant gave evidence.
5. Grounds 3 and 4 are based upon a contention that the recording of the interview on 24 October 2013 was for the purpose of the prosecution and had nothing to do with the investigation of the alleged offences. The applicant's submission was that an interview had to be "for the purpose of" or "in connection with" an investigation; "there has to be some investigative purpose underlying it" (23.2.15 at T8.30; 11.5).
6. There is no clear distinction between something done in connection with, or for the purposes of, an investigation rather than a prosecution. Much activity might be characterised as being for the purposes of both. In my view, the term must be interpreted broadly having regard to the overall context in which it is used as well as the beneficial purposes sought to be achieved by Ch 6 Pt 6 Div 6 (Six benefits were identified when these provisions were first introduced in the Evidence (Children) Act 1997 (NSW)). Given the view I have come to on the jurisdictional issue I will refrain from saying more on the subject.
7. As to ground 5, the learned judge referred to various reasons advanced on behalf of the applicant for it not being in the interests of justice that the complainant's evidence be given in part by way of a recorded interview. She succinctly concluded that none of them persuaded her that it would not be in the interests of justice. The types of matters relied upon by the applicant (inconsistencies in the complainant's account in the recorded interview; matters requiring clarification because of imprecise language used; a question as to whether the complainant suffered from hallucinations at the time of the interview) are largely matters that would arise regardless of the manner in which the evidence was given. They did not mandate a finding by the trial judge that it was "not in the interests of justice".

Jurisdiction under s 5F(3)

1. The Crown contended in written submissions that the appeal was incompetent in that it did not concern "an interlocutory judgment or order given or made in the proceedings". It relied in part upon the decision of this Court in EK v R [2009] NSWCCA 4; 75 NSWLR 302 which was concerned with a decision about the admissibility of a complainant's evidence at a "re-trial" (in fact, it was a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW)).
2. The particular focus in EK v R was upon s 306I of the Criminal Procedure Act which provides for the tender by the Crown in a new trial, of a record of the evidence given by a complainant in an earlier trial where the earlier trial resulted in the jury not reaching a verdict or resulted in discontinuation for any other reason. Johnson J, with whom Grove and Blanch JJ agreed, stated: "[14] Section 306I lies within Chapter 6 (ss.274-306ZP) of the Criminal Procedure Act 1986, entitled "Evidentiary Matters". Part 5 of Chapter 6 (ss.290-306L) is entitled "Evidence in Sexual Offence Proceedings". Section 306I lies within Division 4 (ss.306H-306L) which is entitled "Special Provisions Relating to Subsequent Trials of Sexual Offence Proceedings". The heading to s.306I is "Admission of evidence of complainant in new trial proceedings". [15] I am satisfied that the present decision constituted a ruling on the admissibility of evidence. The decision under challenge involved determination of the threshold question as to whether the procedure under s.306I was available where evidence is tendered at a special hearing. It was the first step to be considered concerning the admissibility of evidence tendered by the Crown. The decision under challenge involves a step along the way of a path concerning the admissibility of evidence. Whether that evidence is admitted, ultimately, will depend upon outstanding statutory matters under s.306I(3) and (5) concerning admissibility. The principle in R v Steffan, which has been applied repeatedly by this Court, has application to this case."
3. The Crown seemed to place some weight on the fact that the provisions of the Criminal Procedure Act under consideration in EK v R and the relevant provisions in this appeal, were in the same Chapter concerned with "evidentiary matters". This was said to support the proposition, as was held to be the case in EK v R, that the rulings in the present case were also decisions concerned with the admissibility of evidence. I am unable to accept the Crown's submissions in this respect.
4. The applicant relied upon the decision in R v RAG [2006] NSWCCA 343. That case concerned an appeal by the Crown against a trial judge's decision that a complainant was not competent to give unsworn evidence according to the criteria required by s 13(2) of the Evidence Act 1995 (NSW) concerning alleged sexual assaults upon her by the respondent.
5. The judgment of Latham J, with whom McClellan CJ at CL and Johnson J agreed, included discussion about whether the appeal was brought under s 5F(2) or s 5F(3A). The former provides for a right of appeal by the Crown against an interlocutory judgment or order of the same type as s 5F(3) which provides for an appeal by "any other party to proceedings" against such a judgment or order. Section 5F(3A) provides for an appeal by the Crown against "any decision or ruling on the admissibility of evidence" (provided it has the effect of eliminating or substantially weakening the prosecution case). The determination of Latham J was that the appeal was properly brought under s 5F(2) on the basis that it was against an interlocutory judgment, not a ruling on the admissibility of evidence. Her Honour stated: "[15] The trial judge's decision in the instant case was a judicial act that determined an identifiable or separate part of the proceedings, namely the competency of the complainant: see Steffan at 636A; Bozatsis & Spanakakis at 303. The finding that the complainant was not competent to give unsworn evidence was final, in the sense that it was not subject to review in the course of those proceedings, unlike rulings on the admissibility of evidence: Bozatsis & Spanakakis at 303. The decision may have had the consequence that the complainant's evidence was not admitted, but the substance of the decision was of an altogether different character. It was a judgment and it was also interlocutory, in the sense that it did not finally determine the proceedings between the Director and the respondent: Pavia at 368."
6. I expressed a tentative view at the hearing that the issue in the present case was of a similar type to that in R v RAG. On reflection, however, I have come to the view that the applicant's reliance upon R v RAG was misplaced. Particular regard should be had to the second sentence of the above extract from Latham J's judgment. The present case is distinguishable by virtue of the fact that the ruling that the complainant could give evidence, in part, by way of playing the recorded interview is subject to review in the course of the proceedings. In fact, s 306ZM (in Div 5 Pt 6 Ch 6) specifically provides for such review: "306ZM Court orders The court may make, vary or revoke an order under a provision of this Part either on its own motion or on application by a party to the proceeding or by the vulnerable person giving evidence."
7. In R v F [2002] NSWCCA 125; 129 A Crim R 126, an appeal by both Crown and accused on a joinder/severance issue which arose as a consequence of evidentiary rulings, Wood CJ at CL said the following about the jurisdiction of this Court under s 5F: "[10] Essential to a review under s 5F of the Criminal Appeal Act is the existence of an "interlocutory judgment or order". A wide range of matters have been held to fall within the ambit of this expression, including orders for, or refusal of, separate trials (R v Saunders and R v Georgiou (1999) NSWCCA 125). However, rulings on the admissibility of evidence have been held not to be interlocutory judgments or orders within the meaning of the section: R v Powch (1988) 14 NSWLR 136, R v Rogerson (1990) 45 A Crim R 253, R v Steffan (1993) 30 NSWLR 30 and R v Bailey (1988) 36 A Crim R 633; save where the consequence of the judgment is to rule out all of the Crown evidence leaving it without a case: R v Bozatis and Spanakakis (1997) 97 A Crim R 296. [11] The distinction, it seems, depends in the case of a judgment, upon it determining the proceedings, or at least an identifiable part of them, and being capable of entry in the records of the Court: R v Steffan at 636; or in the case of an order, upon it amounting to a command that something be done or not done: The King v Snow (1915) 20 CLR 315 at 324, 361, and Steffan at 636. In Steffan it was said that it was not immediately self evident how a ruling upon the admissibility of evidence could answer either description. Additionally it was noted that an evidentiary ruling lacks finality, in that it can be changed in the course of the trial."
8. It has been acknowledged that there is no bright line test for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other. After referring in this respect to the judgment of Sheller JA in R v Lethlean (1995) 83 A Crim R 197, Gleeson CJ continued in his judgment in R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 at 303 as follows: "King CJ, in Legal Practitioners' Complaint Committee v A Practitioner (1987) 46 SASR 126 drew a distinction between judgments or orders and what he called "incidental rulings". A judgment or order, he said, is a 'judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings'. However, rulings also decide questions. It is the character of the question, and the effect of the decision, that makes the difference. One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it. In Commonwealth v Mullane (1961) 106 CLR 166 the High Court had to consider whether a decision under review, which involved a ruling on a point of law, amounted to a judgment, decree, order or sentence. In a passage at 169, cited by Sheller JA in Lethlean, the court said: 'What his Honour did was simply to give a ruling on a point of law which was raised. It did not conclude the rights of the parties before the hearing of the case was completed. The County Court judge might have altered his mind, he might have ruled otherwise, he might have qualified his ruling, there was no determination.'" [Emphasis added]
9. The ruling of Payne DCJ is not concerned with the admissibility of evidence but with the manner in which evidence may be given. However, it has very much the same character as a procedural matter that does not finally dispose of any discrete part of the proceedings. It was not a judgment or order in the sense identified in R v Steffan (1993) 30 NSWLR 633 at 636: "the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court" or "a command by a court that something be done (or not done)". It may be contrasted with the decision in R v RAG that a complainant was not competent to give unsworn evidence. The effect of that decision was that the complainant could not give evidence at all; it was a decision which had the effect that something not be done.
10. The applicant submitted that there was finality in the decision to permit part of the complainant's evidence to be given by way of playing the recorded interview: "once the video is played, it cannot be unplayed by judicial reconsideration". However, whilst it is obvious that the recording could not be "unplayed", if it were determined that the evidence should not have been given in that manner, there are other remedies open to a trial judge.
11. It was also submitted that one of the criteria sometimes referred to in the authorities for denying jurisdiction (or leave) under s 5F does not apply in this case, namely the availability of a subsequent appeal against conviction to have the issue in question determined. The applicant pointed to s 306ZJ(1) (in Div 5 Pt 6 Ch 6): "306ZJ Validity of proceedings not affected (1) The failure of a vulnerable person to give evidence in accordance with a provision of this Part does not affect the validity of any proceeding or any decision made in connection with that proceeding."
12. In Panchal v R; R v Panchal [2014] NSWCCA 275 there was a ground of appeal against conviction asserting that a trial judge had erred by permitting a vulnerable complainant to give evidence by way of recorded interview and closed-circuit television without stating her satisfaction that "the facts of the case may be better ascertained if the person's evidence is given in such a manner" (s 306P(2)). The Court (Leeming JA, Fullerton and Bellew JJ) found (at [61]) that there was nothing in the ground and that it was difficult to resist a conclusion that the judge would have been satisfied of the matter if her attention had been drawn to it (the defence acquiesced in the evidence being given as it was). However, the Court determined the ground by reference to s 306ZJ, holding that it was a "complete answer": "[63] … the "validity" mandated by statute denies the availability of any error which would attract the operation of s 6 of the Criminal Appeal Act. The decision to permit evidence being adduced in accordance with ss 306U(1) and 306ZB(1) without the formation of the opinion required by 306P(2) is not susceptible to challenge."
13. For myself, and with great respect, I am doubtful about s 306ZJ being a complete answer to any complaint of error or miscarriage of justice in an appeal against conviction. Moreover, it should be noted that the validity mandated by the section applies in the case of "the failure of a vulnerable person to give evidence in accordance with a provision of this Part". In Panchal v R; R v Panchal, there was no failure; the complainant in fact gave evidence in accordance with the Part.
14. It is unnecessary, however, to say more about this as the availability or unavailability of an avenue of post-conviction appeal is not determinative of the question of whether a ruling has the character of being an interlocutory judgment or order.

Conclusion

1. I am not persuaded that the decision of Payne DCJ to permit the complainant to give evidence in a manner that has become common practice in the case of vulnerable witnesses, by pre-recorded interview, was an interlocutory judgment or order.
2. For these reasons an appeal would be incompetent.

Order

1. I propose the following order: Leave to appeal pursuant to s 5F(3) refused.

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