Director of Public Prosecutions (NSW) v Banks

Supreme Court of NSW|2019-03-05|Before: Ierace J

Solicitors: Solicitor for Public Prosecutions (Plaintiff) Tully & Chiper Lawyers (Defendant) File Number(s): 2018/344994 Decision under appeal Court or tribunal: Local Court Citation: R v Jeremy Banks Date of Decision: 24 July 2018 Before: Longley LCM File Number(s): 2018/141401

The relevant legislative provisions

The term "domestic violence offence" is defined in the CPA, s 3 to incorporate its definition in the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which includes (s 11) a personal violence offence committed where the perpetrator and victim have, or have had, a domestic relationship.
Part 4B was introduced by the Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 (NSW), which commenced on 1 June 2015. The relevant parts of the CPA, Pt 4B are: "Part 4B Giving of evidence by domestic violence complainants Division 1 Preliminary 289C Interpretation (1) In this Part: complainant means a domestic violence complainant. recording means: (a) an audio recording, or (b) a video and audio recording. view a video recording means view and listen to. (2) Words and expressions that are defined in the Evidence Act 1995 and that are used in this Part have the same meanings in this Part as they have in the Evidence Act 1995. 289D Meaning of 'recorded statement' In this Act, a recorded statement means a recording made by a police officer of a representation made by a complainant when the complainant is questioned by a police officer in connection with the investigation of the commission of a domestic violence offence if: (a) the recording is made with the informed consent of the complainant, and (b) the questioning occurs as soon as practicable after the commission of the offence. 289E Relationship to Evidence Act 1995 The provisions of this Part are in addition to the provisions of the Evidence Act 1995 and do not, unless a contrary intention is shown, affect the operation of that Act. Note. For example, provisions of that Act such as section 21 (relating to oaths and affirmations) and section 65 (an exception to the hearsay rule where a person is not available to give evidence) are not affected by this Part. Division 2 Giving of evidence of out of court representations 289F Complainant may give evidence in chief in form of recording (1) In proceedings for a domestic violence offence, a complainant may give evidence in chief of a representation made by the complainant wholly or partly in the form of a recorded statement that is viewed or heard by the court. (2) A representation contained in a recorded statement may be in the form of questions and answers. (3) A recorded statement must contain the following statements by the complainant: (a) a statement as to the complainant's age, (b) a statement as to the truth of the representation, (c) any other matter required by the rules. (4) If the representation contained in a recorded statement, or part of it, is in a language other than English: (a) the recorded statement must contain an English translation of the representation or part, or (b) a separate written English translation of the representation or part must accompany the recorded statement. (5) A complainant who gives evidence wholly or partly in the form of a recorded statement must subsequently be available for cross-examination and re-examination: (a) orally in the courtroom, or (b) in accordance with any other alternative arrangements permitted for the complainant under this or any other Act. (6) This section does not prevent a complainant from giving evidence in any other manner permitted for the complainant under this Act or any other law. … 289I Admissibility of recorded evidence (1) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of evidence of a representation in the form of a recorded statement."
As to the Evidence Act, the relevant parts are: "65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: … (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable … Note. Section 67 imposes notice requirements relating to this subsection."
The notion of the unavailability of a witness is defined in Pt 2, cl 4 of the Dictionary of the Evidence Act: "4 Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: … (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or (g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. …"

Submissions in the Local Court

The prosecutor sought to tender the recorded statement pursuant to the Evidence Act, s 65(2) on the basis that the complainant was "unavailable" as defined in the Evidence Act. Section 67 requires that "reasonable notice" be given by a party intending to rely upon s 65. The prosecution gave notice six days prior to the hearing, which the defendant submits was not a "reasonable" period.
The defendant submitted that the CPA, Pt 4B, in particular s 289F, overrides the operation of the Evidence Act, s 65(2) if the "evidence of the previous representation" is a recorded statement within the meaning of Pt 4B. In the alternative, he relied upon the discretionary and mandatory exclusion provisions of the Evidence Act, ss 135 and 137 to exclude it.
The prosecutor responded that s 289F concerned only the mode in which evidence in chief may be received by the court in a hearing concerning a domestic violence offence, whereas the content of a prior representation tendered pursuant to s 65(2) does not constitute the maker of the prior representation "giving evidence". He referred to three decisions concerning the latter proposition, two of which supported his submission. Consequently, he submitted, there is no overlap between the CPA, s 289F and the Evidence Act, s 65(2).
The first case in time was R v BO (No 2) 15 DCLR(NSW) 317; [2012] NSWDC 195, which, the prosecutor conceded, supported the defendant's position. In BO (No 2), Judge Haesler SC ruled that, pursuant to the Evidence Act, s 18, two child witnesses could not be called by the prosecution to give evidence against their father. His Honour then ruled, at [26], that videoed police interviews of the children were inadmissible under s 65(2) and subs (4) because: "It appears to me the clear words of the sections noted above mean that when evidence is allowed pursuant to the exception in s 65 it is still evidence given by the witness whose prior representation it is." (emphasis in original)
BO (No 2) was distinguished by the Victorian Court of Appeal in Fletcher v R (2015) 45 VR 634; [2015] VSCA 146, which considered an application by the prosecution for an advance ruling as to whether a statement made by a witness in the course of the police investigation could be tendered pursuant to s 65(2) of the Evidence Act 2008 (Vic). The witness had been excused pursuant to s 18 of that Act. Sections 18 and 65(2) were in identical terms to their NSW counterparts. Dixon AJA (Weinberg JA agreeing), stated at [58]: "The process of making a statement during an investigation cannot be conflated with the process of giving evidence at a trial. The rules in respect of competence and compellability of witnesses to give evidence at a trial do not govern criminal investigation processes. Absent special arrangements, evidence that is 'given' is received by the court by being seen and heard from the witness box. That evidence does not exist until it is given. A document, such as a statement, may be tendered as an exhibit. An exhibit is also evidence in a trial, but while tender is a process of adducing evidence in a criminal proceeding, the process of creating the document tendered - in this case making a statement - is not. Making a statement to police is neither a process of 'giving' evidence, nor a process in a criminal proceeding as that term is defined by the Act."
The prosecutor also relied upon obiter observations from Johnson J in R v A2; R v KM; R v Vaziri (No 4) (2015) 253 A Crim R 574; [2015] NSWSC 1306 at [174]-[185]. In that case, his Honour considered whether, pursuant to the Evidence Act, s 18, two children (C1 and C2) were compellable witnesses in a prosecution of three persons, including their mother. His Honour determined that they were, but in any event addressed the Crown's alternative submission that their videoed interviews be admitted pursuant to s 65(2). His Honour adopted the reasoning of Beach J in Director of Public Prosecutions (Victoria) v Nicholls (2010) 204 A Crim R 306; [2010] VSC 397 to the effect that a successful objection under the Evidence Act 2008 (Vic), s 18 rendered a person unavailable for the purpose of s 65 of the Victorian Act. Counsel for the children and for the accused had relied upon BO (No 2). Johnson J agreed with Fletcher and said: "[182] I do not accept the submission of Mr Gow, adopted by counsel for the Accused persons, that a distinction can be made between a written statement of a witness and a recorded interview of a witness in this respect. The recorded interview is obtained during the investigatory stage. It will become evidence if admitted at the trial. [183] Attention would then turn to s.65 of the Act itself. In this respect, consideration is to be given to the recorded interviews of C1 and C2. I have viewed the DVD recording of each interview and read the transcript of the interviews. If the point had been reached, I would have been satisfied that the relevant requirements of s.65(1) and (2) had been met. [184] If the Court had upheld the s.18 objections taken by C1 and C2, I would nevertheless have allowed the Crown to rely upon the recorded interviews with C1 and C2 under s.65 Evidence Act 1995. In reaching such a conclusion, I would have applied the Victorian decisions which, in my view, bear directly upon the questions falling for consideration in this case."
Subsequent to the hearing, the Court of Criminal Appeal upheld an appeal against conviction in A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174, finding that his Honour erred in determining that witness C2 was competent to give sworn evidence: see [850]-[881]. The obiter comments of Johnson J in relation to s 65 were unaffected.
Counsel for the defendant submitted that the effect of the introduction of Pt 4B was to create a "specific procedure" for the introduction of recorded statements in domestic violence prosecutions, which, as a matter of fairness to the defendant, mandated the complainant's availability for cross-examination in one of the forms permitted by s 289F(5) and that there was no legislative avenue to admit the statement otherwise.
In a necessarily brief ex tempore judgment, his Honour ruled that the recorded statement was inadmissible, reasoning that the effect of s 289F was to exclude the tender of a complainant's recorded statement if he or she was unavailable for cross-examination. His Honour added that he did not "need to get to that stage" of considering whether the recorded statement was admissible pursuant to s 65, thus implying that if a complainant was unavailable for cross-examination, a recorded statement was also not admissible pursuant to s 65.
Defence counsel then submitted there was no prima facie case. The prosecutor did not wish to be heard against that submission and the two charges were dismissed.

Submissions on the appeal

Orders are sought pursuant to s 59(2) of CARA that the orders dismissing the proceedings be set aside and that the matter be remitted to the Manly Local Court to be dealt with according to law. The plaintiff also seeks an order that the defendant pay the plaintiff's costs.
The grounds of appeal are that the magistrate erred in law by: (i) excluding the application of the Evidence Act, s 65 to a DVEC recording and prohibiting the admission of a DVEC recording even where a complainant is "unavailable" as defined in the Evidence Act; and (ii) dismissing the matter.
The term "DVEC" is a widely-used short-hand form of referring to Pt 4B. A "DVEC recording" refers to audio or video statements that qualify as such in Pt 4B; see, for example, the report by the NSW Bureau of Crime, Statistics and Research (BOCSAR) published in September 2017 titled "Evaluation of the 2015 Domestic Violence Evidence-in-Chief (DVEC) reforms". In this case, in the Local Court, both parties referred to the complainant's videoed statement as a "DVEC".
The plaintiff submits that the magistrate's construction of s 289F does not accord with a proper construction of that section, having regard to fundamental principles of statutory interpretation. The first principle the plaintiff relies on is textual, submitting that the words in s 289F(1) and subs (5) "in the form of a recorded statement" contrast with the Evidence Act, s 65(2) which, in the broader context of Pt 3.2 of the Evidence Act which deals with hearsay, concerns the admissibility of evidence rather than its form.
The second principle relied upon concerns the purpose of s 289F, which the plaintiff contends is not to qualify the operation of s 65, but rather only to provide an alternative manner for a witness, namely, a complainant in a domestic violence prosecution, to give their evidence in chief, subject to specific conditions. The plaintiff relied upon the Second Reading Speech to the Criminal Procedure Amendment (Domestic Violence Complainants) Bill 2014, which introduced Pt 4B, as to its purpose.
The plaintiff also relies on the doctrine of implied repeal; that is, if there is an implied inconsistency between two statutory provisions, the court should prefer an interpretation that avoids the inconsistency, if one is available. The plaintiff referred to Saraswati v The Queen (1991) 172 CLR 1; [1991] HCA 21, where Gaudron J stated at 17: "It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied."
The plaintiff further submits that the note to s 289E, to the effect that provisions of the Evidence Act, such as ss 21 and 65, are not affected by Pt 4B, is confirmatory extrinsic material of this meaning and purpose: see the Interpretation Act 1987 (NSW), s 34(1)(a).
The defendant submits that if a recorded statement that satisfies the requirements of Pt 4B is admissible pursuant to s 65(2), the introduction of s 289F served no purpose, which would entail a construction that does not promote the purpose of the Act that introduced Pt 4B. The language in s 289F is clear; if the complainant is unavailable, the recorded statement is inadmissible.
In oral submissions, Senior Counsel for the defendant submitted that the Second Reading Speech evidenced an intention on the part of parliament to "pass a new procedure, a brand new creature"; namely, the recorded statement of a complainant in a domestic violence prosecution which is exclusively governed by Pt 4B and therefore to the exclusion of s 65(2).
The defendant further submits that, since the Evidence Act is silent as to the admission of evidence in chief in the form of a video recording of the evidence of a complainant in a domestic violence prosecution, there is no inconsistency between the CPA, s 289F and the Evidence Act, s 65(2), with the effect that if the recorded statement is inadmissible pursuant to s 289F, it is not otherwise admissible under s 65(2). For this reason, the note to s 289E concerning the continuing application of the Evidence Act is irrelevant.

Consideration

Section 56(1)(c) of CARA provides that the prosecutor may appeal to the Supreme Court against an order made by the Local Court dismissing a matter the subject of any summary proceedings, but only on a ground that involves a question of law alone. The appeal is against the order dismissing the proceedings on the basis of there being no prima facie case, which ordinarily is a matter of mixed fact and law. In this case, it followed a determination excluding critical evidence against the defendant on a basis that involved a question of law alone and where the prosecutor thereafter, for the purposes of the no prima facie case submission, offered no further evidence. Accordingly, I am satisfied that it is an appeal involving a question of law alone and proceed to the merits of the appeal.
The operative provision of Pt 4B of the CPA is s 289F(1), which provides that the evidence of a complainant in a domestic violence prosecution may be given, wholly or partly, in the form of a "recorded statement". A "recording" is defined in s 289C as either an audio recording or a video and audio recording. A "recorded statement" is defined in s 289D to mean a recording made by a police officer when the complainant is questioned in connection with an investigation of the commission of a domestic violence offence, if it is made with the complainant's informed consent and as soon as practicable after the commission of the offence.
The essence of the competing submissions as to the proper construction of s 289F are, for the plaintiff, that it concerns only the form of evidence in chief by a complainant and, for the defendant, that it determines, to the exclusion of s 65(2), the only circumstances in which a recorded statement of a domestic violence complainant may be tendered in evidence.
A recorded statement that is viewed or heard by a court pursuant to s 289F(1) is the evidence in chief of the complainant. In Director of Public Prosecutions (NSW) v Al-Zuhairi [2018] NSWCCA 151 Payne JA (R A Hulme and Fagan JJ agreeing), having reviewed the context and purpose of s 289F as to the status of the recorded statement, stated, at [43]: "Nothing could be clearer from the subject matter, scope and purpose of s 289F(1) of the Criminal Procedure Act, in context, than that the legislature intended that a recording made pursuant to s 289F(1) of the Criminal Procedure Act, once 'viewed' or 'heard' in the Local Court becomes 'evidence given' in Local Court proceedings."
I accept the plaintiff's submission that it is clear from the text of s 289F that the purport of the section does not extend beyond this limited purpose; it is concerned only with the form of evidence in chief by a complainant in a domestic violence prosecution. To argue otherwise is to not accept the plain meaning of the words of the section, in particular subss (1) and (5). The requirements of s 289F(3) and subs (4) have the effect of aligning the content of the recorded statement with the formal parts of a conventional witness statement to police in written form, which is consistent with this interpretation. Lest there be any doubt about the absence of any contrary intention to extend the reach of the section further than it being another form of evidence in chief, it is apparent from s 289E that the provisions of the Evidence Act continue to apply. The note to that section, which specifies s 65 as an example of a provision of the Evidence Act that is intended to continue to apply, is confirmatory of that construction and its application to s 65(2).
The meaning of a statutory provision is not determined exclusively by regard to its text; its content and purpose must also be considered: see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [14].
The purpose of Pt 4B was explained in the Second Reading Speech by the Attorney General, the Hon Brad Hazzard (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 October 2014), at 1487: "The Government is pleased to introduce the Criminal Procedure Amendment (Domestic Violence Complainants) Bill 2014. The bill amends the Criminal Procedure Act 1986 to enable domestic violence complainants to give their evidence in chief by way of a prior recorded video or audio statement in criminal proceedings for a domestic violence offence. … The power dynamic that typifies domestic violence does not stop at the courtroom door. There is a risk of re-traumatisation of victims. They must attend court and give oral evidence from memory, and usually in front of the perpetrator, about a traumatic incident. They may face pressure from a perpetrator to stop cooperating with the prosecution. This can result in victims being reluctant to come to court or changing their evidence once in the witness box. … New measures for giving evidence using available technology are needed to reduce the trauma faced by victims when in court. These reforms provide such measures by introducing a new part into the Criminal Procedure Act 1986 to apply to the evidence of domestic violence complainants. The key element of the new part is removing the hearsay rule of evidence as it applies to domestic violence complainants in criminal proceedings. Recorded interviews of complainants taken by police at or shortly after a domestic violence incident will be able to be played in court as all, or part of, their evidence in chief. … New [Part 4B] will also operate in conjunction with the Evidence Act 1995, except where specific exception is made. …The key exception in this bill to the Evidence Act 1995 is that domestic violence complainants will now be entitled to adopt, as their evidence in chief, their recorded statement. … The recording will not be tendered as part of the prosecution's case; rather, it will be treated just as a witness's oral evidence. …"
Thus the purpose of Pt 4B, as expressed in the Second Reading Speech, is limited to enabling a different form of the evidence in chief of a complainant in a domestic violence prosecution, for well-understood reasons of policy. It was intended to address specific concerns relating to the difficulties faced by domestic violence complainants in giving evidence in chief.
The defendant's interpretation of the Second Reading Speech, that Pt 4B was intended to create a new rule applying to recorded statements of complainants in domestic violence prosecutions for all purposes, is not sustainable. The Attorney General said nothing in the Second Reading Speech that could reasonably be interpreted as an intention to eliminate the existing use of prior representations of an unavailable complainant. If that was the intention and purpose, it is unthinkable that it would not have been expressly acknowledged. As the police prosecutor noted before the magistrate, a patently illogical consequence of the defendant's construction of Pt 4B would be that a written statement by an absent complainant could continue to qualify for tender pursuant to s 65(2) but a video or sound-recorded statement could not.
The complaint by the defendant that the notice required by ss 65 and 67 of the Evidence Act was inadequate is of no moment in the circumstance that the magistrate did not consider s 65 at all.
In exchanges with the Bar table and in his reasons, the magistrate expressed concern that allowing the recorded statement to be tendered when the complainant was unavailable for cross-examination would be procedurally unfair to the defendant, because the evidence could not be tested. It is, of course, axiomatic that the reception into evidence of a prior representation of an unavailable witness deprives the defendant of an opportunity to test the evidence by way of cross-examination of that witness. However, although that routinely occurs (see, for instance, R v Suteski [2002] NSWCCA 509), it is in limited circumstances. The party seeking to tender the prior representation must satisfy the conditions in s 65(2). In a case such as this, the prosecution is likely to rely upon s 65(2)(b) and/or subs (c). In that case, material that tends to corroborate or detract from the reliability of the prior representation will be relevant to the determination of whether the prior representation is unlikely to be a fabrication or whether it is highly probable that the prior representation is reliable.
As well, the defendant may invoke the Evidence Act, ss 135 and 137 as further bases for exclusion, in the particular circumstances of the case. If the evidence is admitted, its weight in the circumstances of the witness's absence remains a relevant consideration.
Accordingly, I propose to allow the appeal and set aside the magistrate's orders dismissing the proceedings against the defendant.

Costs

The plaintiff seeks an order for costs. In oral submissions, the defendant resisted that order on the basis that he is the inadvertent party to a test case concerning the construction of a key legislative provision. I accept that submission, noting that the proper construction of s 289F is a matter of some significance and that there is no finding that the defendant was responsible for the complainant's absence from court on the date of the hearing. I will not make an order as to costs.

Orders

I make the following orders: (1) The appeal is allowed. (2) Pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), s 59(2), the order made on 24 July 2018 at Manly Local Court dismissing charges against the defendant of assault occasioning actual bodily harm contrary to the Crimes Act 1900 (NSW), s 59(1) and assault contrary to the Crimes Act 1900, s 61 is set aside. (3) The proceedings be remitted to the Manly Local Court to be heard and determined according to law.

Amendments 10 April 2019 - Correction to typographical error in catchwords and [9] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 April 2019

Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014(NSW)

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