R v Nona [2015] ACTSC 175

Supreme Court of the ACT|2014-11-21|Before: Refshauge J

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Under section 65(3) of the Evidence Act 2011 (ACT):

(i) The audio recording of the evidence of JG given in the trial of Dennis Michael Nona on 30 and 31 July 2012 be admitted as evidence in his re-trial to commence on 1 December 2014;

(ii) The audio recording of the evidence of HT given in the trial of Dennis Michael Nona on 31 July 2012 be admitted as evidence in his re-trial; and

(iii) The audio recording of the evidence of AD given in the trial of Dennis Michael Nona on 31 July 2012 be admitted as evidence in his re-trial.

CRIMINAL LAW - Practice and procedure - Evidence - Pre-trial Application - Admission of audio recordings of the evidence - Interlocutory proceedings - Hearsay - Maker not available - Unavailability - Mental health - Depression - Anxiety - Suicidal ideation - Attempt to commit suicide - Inability to give evidence without an unacceptable risk of serious mental harm

Evidence Act 2011 (ACT), ss 65(3), 67, 75, 142, Cl 4 Pt 2 Sch 1,

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 43A, Div 4.2A, 4.2B

Court Procedures Rules 2006 (ACT), rr 6000, 6703

Clarkson v The Queen (2011) 32 VR 361

Director of Public Prosecutions (Victoria) v BB (2010) 204 A Crim R 85

Ex parte Britt [1987] 1 Qd R 221

Gilbert v Endean (1878) 9 Ch D 259

R v Rogerson (1990) 45 A Crim R 253

R v Sarbandi (2012) 229 A Crim R 39

R v Steffan (1993) 30 NSWLR 633

Société d'Alliances Commercialtes (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palantina") [1924] 20 LI L Rep 140

Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd trading as "Uncle Bens of Australia" (1992) 27 NSWLR 326

Tsang v Director of Public Prosecutions (Commonwealth) [2011] VSCA 336; (2011) 255 FLR 41

Australian Law Reform Commission, the New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law Report (ALRC, NSWLRC, VLRC; Sydney, 2005)

Wellborn O, "Demeanour" (1991) 76 Cornell L Rev 1075

1. Dennis Michael Nona, the accused, has been charged with a number of sexual offences alleged to have been committed between 29 January 1995 and 15 September 1996 against the daughters of his then partner.

2. The trial of those charges was listed to commence on 1 December 2014 and the Crown sought orders under s 65(3) of the Evidence Act 2011 (ACT) for the admission in that trial of certain evidence by audio recordings of the evidence given by witnesses at an earlier trial.

3. On 21 November 2014, I gave the Crown the leave that was sought and said I would publish my reasons later. These are my reasons.

4. The proceedings have had a long and complex history which, however, is not irrelevant to the current proceedings.

5. In August 2012, Mr Nona was convicted after a trial by jury of four of the five counts on the indictment for the criminal trial that he then faced. I shall call these counts the first charges. On 22 October 2013, however, the Court of Appeal overturned the convictions and ordered a re-trial: Nona v The Queen (2013) 8 ACTLR 168.

6. In the meantime, Mr Nona had faced a further trial on 20 September 2012 on a further indictment. I shall call the counts on the indictment for that trial the second charges. The jury could not agree on a verdict. A re-trial of that indictment commenced on 1 July 2013 and, on 5 July 2013, he was found guilty of all nine counts on that indictment. He has also appealed from those convictions to the Court of Appeal which has reserved its decision.

7. The re-trial on the remaining four of the first charges, ordered by the Court of Appeal as referred to above (at [5]), was listed to commence on 1 December 2014, as I have also noted above (at [2]), and that will require the two complainants and their mother as central witnesses to provide evidence. It is now asserted by the Crown that these three witnesses will be unavailable to give evidence and, accordingly, the Crown applied for orders permitting their evidence, that was led at the first trial and which has been audio recorded, to be admitted as their evidence at the trial.

8. Section 65 of the Evidence Act sets out the circumstances under which a court may so order. The section is in the following terms:

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 -

(a) was made under a duty to make that representation or to make representations of that kind; or

(b) was made when or shortly after the asserted fact happened 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; or

(d) was -

(i) against the interests of the person who made it at the time it was made; and

(ii) made in circumstances that make it likely that the representation is reliable.

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in the proceeding, the defendant in the proceeding to which this section is being applied -

(a) cross-examined the person who made the representation about it; or

(b) had a reasonable opportunity to cross-examine the person who made the representation about it.

...

(5) For subsection (3) and subsection (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but -

(a) could reasonably have been present at the time; and

(b) if present could have cross-examined the person.

(6) Evidence of the making of a representation to which subsection (3) applies may be presented by producing a transcript, or a recording, of the representation that is authenticated by -

(a) the person to whom, or the court or other body to which, the representation was made; or

(b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or

(c) the entity responsible for producing the transcript or recording.

...

(8) The hearsay rule does not apply to -

(a) evidence of a previous representation presented by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

9. It is a precondition set out in s 65(1) that the section only applies where the person who made the previous representation is "not available to give evidence". Clause 4 of Pt 2 of Sch 1 of the Evidence Act defines the circumstances in which a person is taken "not to be available to give evidence". That clause is in the following terms:

4 Unavailability of people

(1) For this Act, a person is taken not to be available to give evidence about a fact if -

(a) the person is dead; or

(b) the person is, for any reason other than the application of section 16 (Competence and compellability - judges and jurors), not competent to give the evidence; or

(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or

(d) it would be unlawful for the person to give the evidence; or

(e) a provision of this Act prohibits the evidence being given; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure the person's 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.

(2) In all other cases the person is taken to be available to give evidence about the fact.

10. The Crown relied upon cl 4(1)(c) of Pt 2 of Sch 1 of the Evidence Act. The application was opposed.

11. Mr Nona lived with his then partner, AD, from about September 1995. At the time, AD had three children, two girls, one then aged twelve or thirteen and one then aged thirteen or fourteen, and one boy. I shall refer to the daughters as JG and HT.

12. In mid-September 1996, Mr Nona left Canberra and moved to an island in the Torres Strait in Queensland.

13. Soon after, one of AD's daughters, JG, was taken to Canberra Hospital and it was discovered that she was approximately twenty to twenty-three weeks pregnant. The pregnancy was, however, terminated, but the foetus was retained and subject to a DNA analysis.

14. In January 1998, Mr Nona was subject to DNA analysis and a comparison of two DNA samples showed that "the probability of paternity [of the foetus] for Dennis Nona is 99.988%, this means that paternity is practically proven".

15. Although a Brief of Evidence was also prepared and information for a First Instance Warrant was sworn on 30 July 1998, that warrant was never executed and Mr Nona was not charged with any offences until 25 March 2009 when summonses were served on him requiring him to appear in the ACT Magistrates Court on 20 April 2009.

16. On 3 December 2009 he was committed to this Court for trial.

17. On 23 March 2012, Burns J dismissed an application for a permanent stay of proceedings and his trial commenced on 30 July 2012 on an indictment alleging that Mr Nona committed an act of indecency upon JG, then under the age of sixteen years, two counts that he engaged in sexual intercourse with JG, a further count that he committed an act of indecency in the presence of JG and also a count that he committed an act of indecency in the presence of her sister HT, also then under the age of sixteen years. These are the first charges.

18. AD, JG and HT all gave evidence at the trial and, on 10 August 2012, Mr Nona was found not guilty of the first count on the indictment (alleging that he committed an act of indecency on JG) and guilty of the other four counts on the indictment, as I noted above (at [5]).

19. Mr Nona appealed against the conviction entered on 10 August 2012.

20. On 22 October 2013, the Court of Appeal set aside the convictions and ordered a re-trial. See Nona v The Queen (2013) 8 ACTLR 168. That re-trial is the trial that was listed to commence on 1 December 2014.

21. In the meantime, Mr Nona was charged with further offences. An indictment containing eleven counts, two of which were in the alternative, was presented. These were the second charges.

22. These counts involved sexual intercourse and acts of indecency with HT who was then under the age of sixteen years.

23. The trial of these charges commenced on 18 September 2012 but the jury could not agree and was discharged. Both HT and her mother, AD, gave evidence at the trial. Although JG was to give evidence, she refused to do so saying that she was "not in the right state to come down. I am very depressed and stressed out at the moment".

24. Mr Nona was re-tried on that indictment on 1 July 2013 and, on 5 July 2013, was convicted of nine of the counts. The two alternative charges, of course, were not put to the jury for verdict when he was convicted of the principal charges. Again HT and AD gave evidence.

25. He was sentenced to a lengthy term of imprisonment on 25 February 2014.

26. Mr Nona has also appealed against the convictions entered for the nine counts against HT on 5 July 2013 and the sentenced imposed on 25 February 2014. That appeal has been heard but the decision reserved.

27. It is for the re-trial of four of the five of the first charges that the Crown sought orders under s 65(3) because of concerns expressed by JG, HT and AD about the prospect of giving evidence again.

28. The evidence of JG at the first trial was that, when she was 12 years old, Mr Nona had sexual intercourse with her and that this resulted in a pregnancy which was terminated at approximately 23 weeks gestation. She also gave evidence that, when she was 13 years old, she was in the backyard of the home where she and her sister, HT, lived with their mother, AD, when Mr Nona exposed his penis to her while he was masturbating. This was the incident said to give rise to the counts of acts of indecency in the presence of JG and HT.

29. JG also gave evidence of a further act of sexual intercourse which was not charged on the indictment.

30. JG participated in an interview with police on 13 March 1997 which was recorded. The video recording of this interview and a transcript was admitted into evidence at the trial under Div 4.2A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). She also gave further evidence and was cross-examined.

31. Her evidence concerned the first four of the five counts on the indictment, though the fourth and fifth counts involved the same incident.

32. HT also gave evidence at the first trial. She gave evidence of the incident which comprised the fourth and fifth counts on the indictment and for the latter of which she was the complainant. She gave direct evidence of that incident. She was cross-examined on her evidence.

33. HT had, as noted above, also given evidence at the trial and retrial of the second charges.

34. AD, the mother of JG and HT and the former partner of Mr Nona, was in that relationship with him when the offences were allegedly committed. She gave evidence of the circumstances of their relationship and of her knowledge of JG's pregnancy but she was not a direct witness to any of the incidents the subject of the offences. She was also cross-examined.

35. She also gave evidence at the trial of the second charges.

36. The Crown sought to prove that JG, HT and AD were unavailable by, inter alia, tendering statements they had made to police officers. Mr Nona objected.

37. The Crown submitted that the statements were admissible, even though hearsay evidence, under s 75 of the Evidence Act which section disapplies the hearsay rule for interlocutory proceedings if the source of the evidence is presented. Here the source, namely statements made by the witnesses to police, was presented.

38. The issue then was whether the proceedings were interlocutory. The seminal case and the source of modern authority on whether an application is interlocutory appears to be Gilbert v Endean (1878) 9 Ch D 259. In that case, Cotton LJ said at 268-9:

I am not now adverting to the question as to whether or not the evidence ought to have been given viva voce or by affidavit, but the question whether the rule that on interlocutory applications the Court may act upon evidence given on the witness's information and belief applies to the present case. But for the purposes of this rule those applications only are considered interlocutory which do not decide the rights of parties, but are made for the purpose of keeping things in statu quo till the rights can be decided, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the Court ultimately to decide upon the rights of the parties.

39. This decision was followed by McPherson J in Ex parte Britt [1987] 1 Qd R 221, where his Honour formulated the test, at 226, as follows:

For my part I consider that the test laid down by the decisions of the High Court of Australia to which I have referred should also be applied to determine what is final or interlocutory for the purpose of O.41, r.3. That test is, as I have said, whether the decision of the application will finally dispose of the rights of the parties, not merely as to the subject-matter of the particular application in question but also as to the ultimate dispute between the parties, irrespective of whether it is already the subject of litigation, and independently of whether the outcome of the application may, in a practical sense, spell an end to all prospect of initiating such litigation.

40. The application presently before me will not determine the rights of the parties finally; indeed, in the words of Cotton LJ, it will only "decide how the cause is to be conducted".

41. Mr F J Purnell SC, counsel for Mr Nona, relied on the decision of the NSW Court of Criminal Appeal in R v Steffan (1993) 30 NSWLR 633, to submit that the application was not an interlocutory application. In my view, it does not decide this.

Accordingly, in our opinion, a ruling on evidence made in advance of or in the course of the trial, in either the Supreme Court or the District Court, is not an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act.

43. This, however, has to be put into context. The court was there considering the whole phrase. It did indicate, however, that, in order to do so, it had to consider its "component parts". Thus, the court said at 635-6:

Leave to appeal against those rulings was sought pursuant to s 5F of the Criminal Appeal Act 1912. That section permits an appeal by leave against an interlocutory judgment or order given or made in the proceedings, such proceedings being identified as being 'for the prosecution of offenders on indictment in the Supreme Court or in the District Court' ...

The phrase interlocutory judgment or order is not defined in the Criminal Appeal Act, but it has been considered by this Court on a number of occasions since s 5F was inserted in 1987. ... Applications for leave to appeal in other situations give a better appreciation as to what does and what does not amount to an "interlocutory judgment or order".

Before turning to some of those cases, however, it is instructive to consider first how the phrase and its component parts are ordinarily used. A judgment is 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. An order is a command by a court that something be done (or not done). It is unnecessary in the present case to discuss the highly technical distinction between interlocutory and final judgments or orders. If the ruling on evidence in this case was either a judgment or order, it was clearly interlocutory in nature. It is not immediately self-evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the court. It is true that such a ruling may be accompanied (as it was here) by elaborate reasons which have been expressed in a document called a "judgment", but that is an altogether different usage of the word "judgment" and denotes the reasons which have been expressed rather than the formal act of the court.

44. The court then proceeded to consider a number of authorities. It is not necessary to refer to them or trace the court's analysis of them. It is useful, however, to refer to the court's reference to R v Powch (1988) 14 NSWLR 136, where the court noted the distinction drawn in that case between "a ruling on a procedural matter and a judgment or order".

45. In R v Rogerson (1990) 45 A Crim R 253 at 255, the court held that a judge's refusal to disqualify himself upon the ground of apprehended bias was not a judgment or order from which any appeal may be brought.

46. Significantly, in the paragraph immediately preceding that which I have cited above (at [42]), the court said, at 639:

In our opinion, the decisions of this Court remain applicable, and cannot be distinguished upon the basis put forward by the applicant. We are, with respect, unable to accept the obiter dicta expressed by the Court of Appeal in Chow v Director of Public Prosecutions as correct. Even the Supreme Court Act makes a clear distinction for the purposes of appeal between 'judgments and orders' (s 101) and a 'decision' on any question or issue ordered to be decided separately (s 103): cf National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223.

47. It is quite clear to me that the court held that a ruling on evidence was not an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act 1912 (NSW) because it was not a "judgment or order", not because it was not "interlocutory" which, in my view, it plainly was.

48. Accordingly, I rejected this objection and admitted the evidence from which, together with the oral evidence adduced, I make the findings below.

49. Unsurprisingly, when JG was told that the Court of Appeal had ordered a retrial on the first charges, she expressed concern. She told a prosecutor from the Office of the Director of Public Prosecutions that she had "shut down" and that she did not want to think about the matter as it was "too much for her at the moment". She found the whole process "overwhelming".

50. In a statement to police dated 28 April 2014, JG described giving evidence at the first trial as "very hard and stressful". She was pregnant at the time and "became so stressed that [she] ended up in hospital one night during the trial due to high blood pressure". She was, she said, scared to see Mr Nona and described the cross-examination as "horrible".

51. She left Canberra before the trial concluded and described herself as "relieved" at the verdicts of guilty, thinking that this would "give [her] a chance to move on with [her] life".

52. She was due to give evidence at the first trial of the second charges but was too depressed and "stressed out" to do so. She experienced problems with her blood pressure and, when he baby was born, difficulties then coping. She did not give evidence at that trial.

53. She said she was very upset when she learnt that there would be a retrial of four of the five first charges, describing herself as "distraught" and thinking that she "can't do it again". She said she did not want to go again through the "emotional breakdown ... in front of the judge". She became withdrawn from her family and found it hard to communicate with anyone, especially her children. She wanted to be completely alone, crying a lot. When people contacted her, she became angry and aggressive towards them. She spoke about suicide a large number of times, though her husband talked her out of it but her thoughts extended to considering means of suicide such as driving a car into a tree or hanging herself. She sometimes felt that her husband and children would be better if she "wasn't around".

54. This also had a serious effect on her husband, which she described. She told him that he had married the wrong person.

55. After one occasion, where she considered hanging herself, she went to see her doctor who wanted to refer her to hospital to "see Mental Health" but she saw a psychologist instead. She attended one appointment but felt uncomfortable and did not return. Mental Health workers attended her home and told her that she was suffering from depression.

56. The thought of giving evidence in court again made her "pretty sad". She said that she "was prepared to do it once, but not again". She did say "[i]f they made me come to court, I would, but only because I do not want to go to jail". She said the experience would make her "very sad and very stressed again". The experience of going to court would make her "stressed, depressed and suicidal". She said that she had attempted suicide. It was clear that she was really not prepared to give evidence again because of the mental pressure it put on her.

57. Her husband also made a statement in which he told of how JG became more and more anxious as the first trial date became closer. He explained that the giving of evidence was "very hard" on her and that she became very upset and angry. He said that her hospitalisation during the trial was, he was told by staff, due to "high blood pressure caused by stress".

58. JG's husband described her as much more relaxed after the verdict but worried about giving evidence for the trial of the second charges. He said that JG began to get depressed but could not take any medication to manage her depression because of her pregnancy.

59. She also, he said, became emotional when the trial of the second charges drew near and she was too ill to attend and did not give evidence.

60. JG's husband described her reaction to news of the retrial of four of the five of the first charges; it made JG very upset and she became depressed and suicidal, thinking that her life was worthless and that, at times, she wanted to kill herself.

61. He took her to see a psychiatrist but she missed appointments. He expressed a fear that she would hurt herself and so did not let her drive.

62. He described the tension she felt, which clearly did not help her, for, while she wishes justice to be served, she was very stressed about going back to court.

63. AD, JG's mother, also provided a statement about JG's mental condition. She set out what she saw of the effect on both her daughters, JG and HT, of giving evidence. She said:

It has broken them both down mentally. It has gotten so bad for them both that they have both had emotional breakdowns and they have become suicidal. [HT] tried to commit suicide a few months ago. [JG] has talked about suicide many times, but thankfully has never tried anything.

Most of the time both the girls just go blank and they shut us out. They have lost their confidence to go out and get a job and they shut themselves away from everything. They both also struggle with coping with their children and I have to be there for my six grandkids. It has become too much for all of us.

64. She reported that JG had been diagnosed with depression. She said that JG had told her that "she would rather die than go back to court again". She said that JG broke down when she heard the result of the appeal. AD commented:

They both want to move on with their lives and this just keeps dragging them down. Really, its [sic] torture, for them both, in their minds to have to keep going back.

65. I also had a copy of notes from the medical practice that had provided treatment for JG.

66. JG was examined on 20 November 2013; she was clearly in a bad state. After setting out a general history the notes record:

feeling very depressed and anxious, wants everything finished.

has suicidal thoughts, try to hang herself 2 days ago, was found by her husband also think of overdose of advil, did not do it

stated no suicidal plan now, but unsure in the future

67. A referral was made, as noted above (at [55]), to the hospital emergency department where JG would be seen by the Mental Health Service. The notes record a call from the Mental Health Service to say that she had not turned up and contact was unable to be made with her. Police were notified because of the medical practitioner's concerns for JG's safety but her husband finally rang and was advised not to leave her alone at any time.

68. JG returned to the practice a few days later and arrangements were made for a psychiatrist and psychologist to review her situation.

69. This report was, of course, relatively old in time, but contemporaneous with the notification of the successful appeal requiring a retrial.

70. Evidence was given by two police officers who had had contact with JG.

71. Detective Senior Constable Tracy Darragh stated that she had had frequent contact with each of the witnesses the subject of this application, including JG. She denied that JG had said to her that she did not want to give evidence at the first trial. She was aware that all three witnesses had later talked about suicide on a number of occasions or attempted it.

72. JG sent an email to Detective Senior Constable Darragh advising that she did not think she would be able to appear at the trial for the second charges as she had been sick and that "[s]o many things are worrying [her]". She had attempted suicide. Detective Senior Constable Darragh was also later told that JG had been "in and out of hospital due to pregnancy issues and that she was depressed and struggling since ... [the] trial [of this first charges]". Detective Senior Constable Darragh became aware of the conversation about suicide after the decision of the Court of Appeal to require a new trial on four of the five of the first charges.

73. Detective Senior Constable Darragh was not aware of any medical records relating specifically to the attempts by JG at suicide. She was aware, however, of a suggestion by JG that she wanted "to go to 60 Minutes", though that was not a conversation she had with JG herself.

74. Detective Senior Constable Darragh was also aware that JG had been hospitalised after giving evidence. She was aware that she was suffering from high blood pressure but not that there was a urinary tract infection. She was aware that JG was pregnant at the time. She was not aware of any complaint that was recorded in the hospital notes by JG about giving evidence.

75. She also heard from Federal Agent Michelle Taylor that JG "Just doesn't want to do it anymore" and that JG had told AD that she was suicidal.

76. On 27 February 2014, HT told Detective Senior Constable Darragh in a telephone call that JG was "fragile and would not talk about the retrial". HT thought it unlikely that JG would appear in court and that she was resistant to getting help.

77. She met with JG on 28 April 2014 when she took a statement from JG who informed her that she had been diagnosed with depression and had suicidal ideation. She said she did not want to go back to court again.

78. I also had an email from JG to Detective Senior Constable Darragh of 5 September 2012 which confirmed that JG did not think she could return for the retrial because of her depression and stress. I also had a later email of 23 March 2014 when JG told Detective Senior Constable Darragh that she had "been going through an emotional break-down" and that "[t]hings haven't been good". She said that she "ended up giving up on everything because of how much pain [she] was going through".

79. Detective Senior Constable Darragh, the informant, agreed in cross-examination that it was not unusual for complainants to be reluctant to give evidence at trial and to find the experience stressful. She said, however, that for the first trial JG was may have been somewhat reluctant but that she was not aware of any such reluctance and that, as far as she was aware, JG was quite prepared to give evidence.

80. She agreed that she had not obtained more recent records than those from the general practice referred to above (at [65]). There were no specific records of the suicide attempt or attempts.

81. Federal Agent Michelle Taylor also gave evidence. She denied that JG was reluctant to give evidence and said that, in 2008, she was prepared to co-operate in bringing the case to trial. She said that, in 2012, she became quite reluctant. She also referred to JG's hospitalisation after she had given evidence but was not aware of the cause. She was also aware from a telephone conversation with AD and HT that JG was discussing "going to 60 Minutes" about the case.

82. She also recounted a conversation with AD and HT on 30 October 2013 when they advised that she should not speak to JG as she was not coping well and was suicidal, though they were trying to convince her to continue with the trial. She said she had seen medical records referring to JG's attempting suicide, described as such by JG but none in which said the doctor themself said "this was a suicide attempt" or words to that effect.

83. Arrangements were made for JG to see a clinical psychologist in August 2014 to assess whether she was mentally capable of giving evidence and JG initially agreed to attend. An appointment was made but she did not attend the appointment. When HT was contacted by a prosecutor from the office of the Director of Public Prosecutions about the missed appointment, as HT had been the contact through which it had been arranged that JG would attend, HT advised that JG was "in one of those give up moods again' and that she doubted whether JG would meet with the psychologist. A further appointment was made but JG did not attend.

84. I also had, later, the hospital notes of JG's presentation at Mental Health Services on 25 November 2013, following the referral from her general practitioner. The history is recorded including her expressed concern that the case had not progressed in 1988 when the pregnancy ended. She rated her mood at 3/10 and reported her attempted suicide by hanging. She also reported perceptual disturbances over the previous two weeks and symptoms of anxiety. She said that she refused to answer the door of her home or the telephone. She experienced nightmares. She felt worthless and had feelings of hopelessness. She was assessed as at medium risk of suicide, low risk of self-harm and medium risk of vulnerability. For the short term, she was referred for support and follow up and, in the long term, referred to a private psychiatrist.

85. A prosecutor from the Office of the Director of Public Prosecutions tried to make contact with JG but the last contact she had was on 16 September 2014, through HT, who advised that she would try to have JG speak to the prosecutor but no contact was made after that.

86. HT was the complainant in respect of the second charges and the fifth (now fourth after the acquittal at the first trial) of the first charges. She did not know of the allegations made by JG against Mr Nona until 2008.

87. HT had initially thought that she was the only person upon whom Mr Nona had committed sexual offences. She had not told anyone about her allegations, even her mother, sister, JG, or her husband because, she said, "the memories were too painful". That, however, affected her relationships and had a negative impact on her marriage.

88. She became stressed during the pre-trial period, especially when Mr Nona applied for a stay of the proceedings (see R v Nona (2012) 6 ACTLR 203) and she found that period hard for her emotionally. She then gave evidence at the trial of the first charges, which she also found stressful; having to talk about Mr Nona was, she said, "extremely difficult".

89. She then had to give evidence at her trial of the second charges. In this trial, the jury could not agree on a verdict and a retrial was arranged.

90. HT initially refused to give evidence on the basis that it was too hard emotionally for her to do so. She started to argue with her mother and it affected her relationships with her other family members. Eventually, however, she decided to give evidence at the retrial of the second charges but found the experience no easier. She described having "to battle with myself to find the strength to go through the court process again". She felt great relief when the trial was over.

91. HT found the sentence, which she considered a light one, to be another source of stress, however, and it caused serious stress in the relationship with her husband and led to her drinking heavily.

92. Even after the second trial, HT did not tell her husband what she said Mr Nona had done to her; she could not talk to him about it and she "was edgy whenever he touched [her]". It added stress to their relationship, she said, to the point where her husband "could not relate to [her] anymore". Her drinking increased to binge-drinking and she and her husband eventually separated.

93. She described that, since then, "things have just been getting worse". She attempted to commit suicide and was found before she succeeded, but not before injuring herself, and she was hospitalised as a result. The appeal from the convictions, however, continued the stress, particularly as it prevented her from feeling any closure. The result of the appeal, namely a retrial, further added to her stress.

94. HT felt that she would not be able to give evidence again. She reflected that she "knew the court process would be hard but ... had no idea how difficult it would be and how much impact it would have on [her] relationship with [her] family".

95. The comments of her mother, set out above (at [63]) are also relevant to the emotional effect on HT.

96. Detective Senior Constable Darragh gave evidence that she was aware of the suicide attempt by HT and of having inspected medical records of HT's hospitalisation. She said that they recorded rope burns around her neck. She also agreed that HT had said that she put the rope around her neck but changed her mind and then stopped. The records, however, did not refer to the incident being caused by her reluctance to give evidence against Mr Nona or her fear of doing so.

97. Federal Agent Taylor also gave evidence of her contact with HT on 30 October 2013 when HT expressed "many times" that she did not wish to proceed with the trial and that she was having suicidal thoughts. She assessed HT as sounding very depressed.

98. Also produced were records from Adult Mental Health Services for a presentation of HT on 20 September 2011. HT had been hospitalised following a threat of suicide after an altercation with her husband. The notes record that she "had no intent to end her life, however, only wanted to get her husband's attention".

99. In the history obtained on that occasion, HT reported "long standing relationship issues and claims she had been feeling depressed about this for some time". She appeared to suggest that this started with extramarital affairs of her husband early in their marriage but which she thought had stopped. The relationship improved for a while but had deteriorated in 2011. She described the relationship, but I do not need to repeat that, save to say that there were clearly difficulties in the relationship.

100. HT admitted to experiencing thoughts of suicide but denied wanting to end her life, her two sons being strong protective factors. She felt depressed and experienced anxiety when her husband was home. There was a further suggestion of suicide through an overdose of paracetamol. The focus of her worry was her marriage at that time. She was reported as saying that she "[f]eels hopeless about her marriage" with issues of self-worth associated with "being put down by her husband over many years". This was confirmed by JG.

101. A further report was also in evidence from Adult Mental Health Services dated 24 February 2014, after HT again attempted to commit suicide by hanging. She still, at the date of the report, had a ligature mark around her neck. She denied any suicidal intent. There were references to difficulties with her husband again, including a further report of an extra-marital affair of which she had learnt. There was no reference to the retrial or the need for her to give evidence.

102. A further report was made on 8 March 2014. HT was reported as being embarrassed at the incident and was well supported by her family. She denied any further suicidal ideation.

103. It was not as clear as with JG, but I can safely infer that HT was not willing to give evidence again because of the mental stress it caused.

104. AD traced her relationship with Mr Nona, which I do not need to recount.

105. She said, "[g]iving evidence in court was terrible. I was really traumatised having to face [Mr Nona]." She described the experience as "hurtful and painful ... emotionally and physically", particularly as it confronted her with the thought that she had not protected her children. She also saw how it affected them and I have described some of that above (at [62]).

106. AD had been sourcing psychological counselling which helped "but doesn't change anything". She has been diagnosed with post-traumatic depression and she suffers from migraine headaches. She described an incident where she collapsed and was hospitalised though without the medical staff finding a physical cause.

107. AD gave evidence at each of the three trials to date.

108. She had also attempted suicide and still had suicidal ideation, though thoughts of her grandchildren helped her overcome these feelings.

109. A Report from Ms Marlene Graham, Psychologist, was tendered. Ms Graham examined AD for assessment. She set out a detailed account of the presentation of AD and the history given. She also administered a validated test, DASS-42 (Depression, Anxiety and Stress Scale), which measures levels of depression, anxiety and stress over the last week. The findings were that AD was measured as experiencing "Extremely Severe" levels of all three feelings. The Report recorded the current psychological symptoms which included depressed mood for most days, fatigue, feelings of guilt, repeated thoughts about suicide and moody temperament. Her opinion was as follows:

Is AD mentally or physically unable to give evidence at the upcoming trial?

I do not feel that AD is currently in a mentally stable condition, and would not be able to give evidence at the upcoming trial. Psychologically, AD feels that she has deteriorated significantly in the last twelve months.

This assessment interview has revealed that AD is suffering from Major Depressive Disorder, Severe, Without Psychotic Features, Chronic. The objective measure used (DASS42) supports this diagnosis

Although her last 'serious' thought about suicide was two years ago, AD reports still having suicidal ideations now. I have urged her to contact her General Practitioner to obtain the referral he advised that he would be providing, for her to see a psychiatrist.

My professional background does not lend itself to advising about AD's physical ability to give evidence.

If she is unable to give evidence, is it reasonably practicable to overcome that inability?

AD has not responded positively to psychological counselling, and has actually regressed significantly in the past year, whilst receiving this treatment. Therefore, further counselling will not improve her psychological status enough to allow her to overcome this inability. If AD were to participate in another trial in her current state, it will most certainly be detrimental to AD's already fragile psychological wellbeing.

Pharmacological treatment, provided through the care of a psychiatrist, may improve AD's condition, enough to be able to participate in another trial. However, this will depend on the type and dosage of medication required, significance of any side effects, and AD's general ability to tolerate the prescribed medication(s).

110. Ms Graham also gave oral evidence. She said that she had an Honour's degree in Psychology and had been practising as a psychologist since 1999. She regularly treated patients. She spent about 2 to 3 hours with AD.

111. She was challenged that she had not included her tests scores for the DASS42 as an appendix to her report so that a reader could not see them and she agreed she had not done so. No suggestion was put to her as to any reason for or disadvantage of this, other than that others could not see what results were recorded.

112. She explained that the most important part of her examination were the reported current stressors. The psychological history was also an important contributor. She also considered that the attempted suicide was very significant. She had not, however, sought independent verification of the incident nor seen the hospital's notes or any treating psychiatrist's notes. She had not contacted AD's general practitioner. She thus relied on AD's report as to her medication and the dose but had seen a report from her treating psychologist as well.

113. Ms Graham accepted that, while her recommendation was that counselling be attempted first for symptoms such as AD has experienced and then medication, nevertheless she agreed that medication could be an important part of the treatment for depression.

114. She did not, however, know the medication AD had been prescribed, what dosages were prescribed or whether they had been increased or decreased at any stage.

115. She was aware that AD had given evidence. It was suggested to her that AD was due to give evidence at unrelated proceedings, a fraud trial and in a compensation case. Ms Graham was not aware of that. She considered that AD could do that because of the different circumstances of the two cases, notwithstanding her view that AD would not be able to give evidence in this case.

116. Ms Graham confirmed her understanding that AD's psychological state had fluctuated since 2008. She was not suicidal until 2012 when she started to have daily thoughts of suicide, especially as a result of the trial of the second charges.

117. It was suggested to Ms Graham, in cross-examination, that if AD had given evidence in the three earlier trials, there was no reason why she could not give further evidence. Ms Graham disagreed because, she said, AD had expressed that she was exhausted and could not keep going. Ms Graham said there was a cumulative effect that had worsened AD's psychological state. She was also concerned at the report of AD's treating psychologist of suicidal ideation. She confirmed her opinion that, despite being potentially able to give evidence in other proceedings, AD could not do so in respect of the abuse of her children. She had grave concerns about AD's mental state.

118. She was asked questions about whether AD was exaggerating her symptoms. She accepted that people do exaggerate their symptoms and this is a risk with self-report. She considered that there was no evidence of exaggeration or feigning by AD and could not see any basis for a claim of secondary gain.

119. I also had a report of 17 June 2014 from Olivia Donaghy, psychologist, who had been treating AD for depression. She described the presenting symptoms as "moderate to severe", including a "very low mood, hopelessness, daily suicidal ideation with a history of a serious suicide attempt and hospitalisation, anxiety/panic, sleep and appetite disturbance and excessive debilitating rumination and worry".

120. Ms Donaghy met with AD on three occasions but AD did not return after March 2014, explaining that she had to care for some of her grandchildren when her daughter attempted suicide.

121. Ms Donaghy was cross-examined. She explained that she had treated AD for her depression with cognitive behavioural therapy. She confirmed that AD had moderate to severe symptoms. She contacted AD when she did not return for treatment and was advised of the reason. She recommended to AD that she have continuing therapeutic support and, indeed, gave AD's general practitioner the name of a psychologist who could provide a home visiting service. She did not gain any details of the suicide attempt and did not ask. She said it would not be usual practice for a psychologist to seek out hospital or medical records in such a case.

122. She considered that a review of her medication would be beneficial as AD seemed to feel it was not having much success; she thought there may be a benefit in a larger dosage. She did not know if this recommendation had been carried out.

123. She was aware of AD's fraud trial relating to the Newstart Allowance and her compensation claim but not the exact nature and did not know details. She did not assess AD's capacity to give evidence.

124. It was clear to me that AD was not prepared to give evidence because of her mental condition.

125. I have set out the law of s 65 of the Evidence Act above (at [8]).

126. The Crown relied on s 65(3) of the Evidence Act; there can be no doubt that the evidence it sought to adduce was admissible under this sub-section. The three witnesses, JG, HT and AD all gave evidence at a trial in this jurisdiction and in which they were all cross-examined by Mr Nona's counsel. That meets all the requirements of the sub-section for the audio record of that evidence to be admitted.

127. Whether the section applies, however, depends on whether the three witnesses were, as required by s 65(1) of the Evidence Act, not available to give evidence. The term "not available" is explained in cl 4 of Pt 2 of Sch 1 of the Evidence Act. I have set out the terms of that clause above (at [9]).

128. The provision on which the Crown relied was cl 4(1)(c) of Pt 2 of Sch 1 of the Evidence Act. That provision was inserted in the NSW and Victorian, but not the Commonwealth, Uniform Evidence Acts following the Report of the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission, Uniform Evidence Law Report (ALRC, NSWLRC, VLRC; Sydney, 2005) (the ALRC Report). The Commissions made the following comments when explaining the provisions at pp 233-4; [8.34]-[8.35]; [8.37]:

... the Commissions have retained the formula 'mentally or physically unable'. To prevent abuse of the amendment and to prevent the amendment being applied to discriminate against persons wrongly, the proposed amendment now contains a qualification that the 'inability' of the witness 'cannot reasonably be overcome'. This is designed to exclude the possibility that (for example) a person unable to speak or hear but who can communicate in writing may be considered 'physically unable' to testify: there will generally be reasonable measures for overcoming such difficulties.

8.35 As to mental inability, it is intended that such an amendment may facilitate, in at least some cases, the admission of the transcript of a complainant's evidence in a retrial. Requiring the complainant to testify again may, depending on the circumstances of the case, do such emotional or psychological harm to the complainant that the complainant should be considered unavailable to give the particular evidence.

...

8.37 It is not intended that the amendment should lower the standard of unavailability generally. For instance, it is not intended that any person should be considered unavailable to give evidence simply by producing a medical certificate asserting that a person is mentally or physically unable to give evidence about a fact. A real mental or physical inability to testify must be shown. These are factual questions courts are well placed to consider on a case-by-case basis, looking to all the circumstances.

129. There are no cases which I can find that deal with this provision. None were cited to me.

130. There is a similar provision in s 93B of the Evidence Act 1977 (Qld). There are, so far as I can discover, no authorities on that section relating to the part of the section which admits hearsay evidence where the witness is "mentally or physically incapable of giving the evidence". There are a number of provisions dealing with the alternative ground in the section, namely that the witness is dead, but that is of no assistance to me.

131. The scarcity of authority may be because provisions such as Div 4.2B and s 43A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and State equivalents mean that the evidence of at least JG and HT will, ordinarily, now be recorded by audio-visual means and will be admitted, under statutory authorisation, without the witnesses having to be called at any retrial. Indeed, that would have been the position in this trial had there been an audio-visual record of the evidence as opposed to simply an audio record.

132. That, of course, cannot resolve the question for decision here for two reasons. In the first place, the obvious reason is that the precondition for admissibility in this way is simply not met. Secondly, the absence of a visual record is not either insignificant or irrelevant.

133. It is important to be careful about inflating the effect of demeanour. In the words of the well-known caution of Lord Atkin in Société d'Alliances Commercialtes (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palantina") [1924] 20 LI L Rep 140 at 152:

an ounce of intrinsic merit or demerit in the evidence, that is to say, the comparison of evidence with known facts, is worth pounds of demeanour.

134. Samuels JA surveyed some of the relevant research in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd trading as "Uncle Bens of Australia" (1992) 27 NSWLR 326 at 348. Professor Olin Guy Wellborn, the William Liedtke Senior Professor of Law at the University of Texas School of Law wrote in an article "Demeanour" (1991) 76 Cornell L Rev 1075 and, at 1104-5, concluded:

If ordinary people in fact possess the capacity to detect falsehood or error in the part of others by observing their nonverbal behaviour, then it should be possible, indeed easy, to demonstrate such a capacity under controlled conditions. Over the past twenty-five years, a large number of experiments involving thousands of subjects have searched for this capacity. With remarkable consistency, the experiments have shown that it simply does not exist. To the extent that people can detect lying or erroneous beliefs in another, they do so primarily by paying close attention to the content of what the other says, not by observing facial expression, posture, tone of voice, or other nonverbal behaviour.

135. Nevertheless, the current state of the law permits, if not actually requires, juries to take account of the way a witness gives evidence in deciding the facts of a case. See, for example, Tsang v Director of Public Prosecutions (Commonwealth) [2011] VSCA 336; (2011) 255 FLR 41 at 66; [108]. Many of the elements, mentioned by the court, of the reasons for the requirement, will be evidence in the audio recording: delay in response, some mannerisms and prevarication, moderating the absence of a video recording.

136. I also note that there is now provision, widely available, for witnesses giving evidence by telephone, not very different from what is here proposed. See r 6703 of the Court Procedures Rules 2006 (ACT). This rule applies to criminal proceedings such as this trial: r 6000.

137. Nevertheless, statutory provisions have been enacted since the Indictable Offences Act 1848 (UK), known as Jervis Act, to provide a statutory exception to the hearsay rule, permitting a deposition to be admitted at trail if the witness who made it was unavailable, though such arrangements were available before then: R v Scarife (1851) 2 Den 281 at 286; 169 ER 505 at 507.

138. There are a number of authorities generally on the issues of unavailability. See, for example, R v Sarbandi (2012) 229 A Crim R 39, addressing, in particular, cl 4(1)(f) of Pt 2 of Sch 1 of the Evidence Act.

139. It is not irrelevant that a number of authorities have also held that the refusal of a witness to give evidence renders the witness relevantly unavailable. Thus, in Suteski [2002] NSWSC 218; (2002) 128 A Crim R 275 at 277; [14], 278; [19], a witness who told the court "I will not answer any questions regarding this matter. I will give you my name, that's it. Apart from that, that's it" was held to be unavailable. It appears that the witness was not punished for contempt. This approach was accepted by the NSW Court of Criminal Appeal in R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at 197; [98]- [99] and, in this jurisdiction, by Connolly J in R v Alchin [2006] ACTSC 53; (2006) 200 FLR 204 at 205; [3].

140. While these cases are on a different provision, it does seem to me that they set a standard of approach that is of some assistance in construing the provision under consideration.

141. Having regard to all these matters, it seems to me that the inability referred to in the provision, namely cl 4(1)(c) of Pt 2 of Sch 1 of the Evidence Act, where the party seeking to adduce the evidence relies on mental inability, has to be considered carefully. It clearly is not intended to and, in my view, does not, permit such evidence as the provision would allow, to be led through mental incapacity because the witness forgot the evidence, even though a very literal reading of the provision might permit this.

142. The evidence may be admissible, however, where the witness's memory has been affected by a mental or physical condition that has caused memory loss or amnesia. Thus, there seems to me to be implicit in the provision a need for some cause outside the ordinary circumstances of memory and recollection.

143. It seems to me, too, that it is not necessary to show an absolute inability, such as where the witness is so mentally impaired that he or she is incapable of responding in any meaningful way to questions or is mute through some mentally traumatic event.

144. In my view, the provision does permit the evidence to be given as proposed where the witness's mental condition is such that he or she will suffer significant mental adverse consequences from giving the evidence. This is clear from the ALRC Report, especially at [8.37].

145. The point made by Bongiorno JA, with whom Harper JA and Haneen J, in Director of Public Prosecutions (Victoria) v BB (2010) 204 A Crim R 85 at 93; [29] is here relevant. His Honour said:

Section 65(3) was enacted as a modern version of earlier laws which provided a means of ensuring that a jury in a criminal trial was not deprived of otherwise relevant evidence merely because of the death of a witness, not excluding the principal witness or victim of the offence with which an accused is charged. Section 65(6) provides for the proof of that depositional material by the production of an appropriately authenticated transcript or recording of the evidence. The section specifically contemplates a case where the jury will not be able to see the witness giving evidence or see him cross-examined. Indeed, until the relatively recent use of audio or video recording became available, a written transcript, taken in shorthand by a court reporter, or even in longhand by a clerk of courts, would have been the only method of placing evidence such as this before a jury at trial.

146. I cannot see the law meeting the balance of being fair to an accused person but also fulfilling the community's expectations that allegations of serious criminal activity will be prosecuted, by requiring witnesses, whose evidence has been appropriately or reasonably preserved, being subject to unreasonable mental anguish and possible short or long term harm.

147. Clearly, however, the risks of such harm must be real and not merely speculative. A witness cannot hide behind a shield of mere allegation of such harm. On the other hand, I do not consider that a pre-condition for a court's acceptance of the possibility of such harm is the provision of expert medical, psychiatric or psychological advice, though that would ordinarily be desirable and may be necessary in appropriate cases. To repeat the words of the Law Reform Commissions "[t]hese are factual questions courts are well placed to consider on a case-by-case basis looking at all the circumstances".

148. Finally, I note that the standard of proof in the determination of whether the evidence is admissible is on the balance of probabilities. This is clear from s 142 of the Evidence Act which provides:

142 Admissibility of evidence - standard of proof

(1) Except as otherwise provided by this Act, in a proceeding the court must find that the facts necessary for deciding -

(a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or

(b) any other question arising under this Act;

have been proved if it is satisfied that they have been proved on the balance of probabilities.

(2) In deciding whether it is satisfied, the matters that the court must take into account include -

(a) the importance of the evidence in the proceeding; and

(b) the gravity of the matters alleged in relation to the question.

149. In my view, this section applies also the pre-condition set out in s 65(1), namely whether the witnesses are not available.

150. As to the requirements in s 142(2) of the Evidence Act, it seems to me that the evidence of JG and HT is centrally and highly important in the proceedings and that it should admitted if the statute permits it. Neither counsel contended otherwise.

151. The gravity of the matters alleged are also very significant. Child sexual abuse is a matter of great seriousness. The consequences of a finding of guilt will almost inevitably be a term of imprisonment for an offender. I must also take this into account in ensuring that the proof is cogent to a substantial degree for this reason.

152. A precondition to the admission of hearsay of the kind the subject of the present application is that, under s 67 of the Evidence Act, notice must be given. In this case, such notice was given. Mr Nona did not contend, through counsel, that the notice was other than reasonable notice in writing which complied with the requirements of this section.

153. The Crown relied on the following matters. Each of the witnesses have given evidence, in at least one trial, of events which, they said, were serious, disturbing and traumatic, where the trials were conducted many years after the events had occurred and where they had managed generally to put the thoughts about the events behind them.

154. Each of the witnesses have expressed suicidal ideation and, in two cases, had actually attempted suicide, though not necessarily with the intent of ending their lives.

155. The witnesses had expressed a strong reluctance to give evidence, though without wishing to risk being subject to contempt proceedings and the possible punishment of imprisonment for failing to answer a subpoena or declining to give evidence.

156. In the case of JG, she declined to give evidence in the trial of the second charges because of her mental fragility, even though the allegations in that trial did not directly concern her as a complainant. That was accepted.

157. Each of the witnesses had been diagnosed suffering from depression and had been treated for that illness, though without significant improvement. While depression might be seen to have a spectrum from the low feeling when something negative happens through to severe illness that can paralyse an otherwise physically well person. The depression in this case would fairly be called clinical depression of at least a moderate severity for each witness.

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