R v ST

4. This is a welcome reform, which had its immediate genesis in a Report by Margaret Jones, a prosecutor in the Office of the Director of Public Prosecutions (ACT), and Sergeant Anthony Crocker of the Australian Federal Police. That Report, Responding to Sexual Assault, the Challenge of Change (2005, ACT: Canberra), made a number of recommendations, including Recommendation 6.2 that the evidence-in-chief of child witnesses should be pre-recorded. This recommendation was based on experience in four other States of Australia and New Zealand where the procedure had been in operation for some years.

5. While the substantial and very real advantages of this procedure were set out in the Report (at pp 132-142) and have mostly been achieved, the practice has led to long interviews which often cover a lot of ground some of which is not always directly or even marginally relevant. Some of the questioning can be repetitive and leading questions are sometimes used. Indeed, some of the evidence may not be admissible. Hence s 40F of the Miscellaneous Provisions Act gives the court a discretion to refuse to admit all or any part of the audiovisual recording.

6. Under s 40E of the Act, the audio-visual recording may only be edited or changed if the court hearing the trial so orders. Often, applications for such editing are made to exclude inadmissible or prejudicial material. Because of the technological requirements for such editing, those applications must, of necessity, usually be made prior to the actual trial.

7. One restriction encountered on the admissibility of such evidence stems from s 51 of the Miscellaneous Provisions Act, which prohibits the admission in a sexual offence proceeding of evidence of the prior sexual activities of the complainant, except those with the accused, except by leave of the court.

8. In this case, the complainant, in one of her interviews with police, apparently claimed that she had been subject to sexual acts performed on her by her paternal grandfather of, she alleged, a similar nature to those she claimed her father had committed. That part of her interview, however, was not in evidence before me.

9. The complainant was later cross-examined about the allegations. This was also recorded under Div 4.2B of the Miscellaneous Provisions Act. Such evidence as referred to prior sexual activity falls within the prohibition in s 51 of the Act. Thus, it was inadmissible save with leave.

10. The accused sought that leave. Section 53 regulates how the court should consider such an application. It provides

53 Decision to give leave under s 51

(1) The court must not give leave under section 51 (General immunity of evidence of complainant's sexual activities) unless satisfied that the evidence -

(a) has substantial relevance to the facts in issue; or

(b) is a proper matter for cross-examination about credit.

(2) Evidence (sexual activity evidence) that relates to, or tends to establish, the fact that the complainant was accustomed to engage in sexual activities is not to be regarded as having a substantial relevance to the facts in issue because of any inference it may raise about general disposition.

(3) Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant's evidence.

(4) If the court gives leave under section 51, it must give written reasons for its decision.

(5) In this section:

proper matter for cross-examination about credit - evidence is a proper matter for cross-examination about credit if the credibility rule under the Evidence Act 2011, section 102 does not apply to the evidence because of that Act, section 103 (Exception - cross examination as to credibility).

11. On 28 February 2014, I granted that leave and said I would give my reasons later. These are the reasons required under s 53(4). It appears that such written reasons can be delivered after the decision is made. While there are obvious benefits for the reasons being given as soon as possible, it does not seem from the terms of the sub-section that they need to be given before or at the trial. I note that Penfold J expressed the same view in R v CH and JW [2010] ACTSC 75 at [13].

12. As the application was made immediately prior to the trial, it was not possible to give the required written reasons before the trial was completed.

13. The evidence was not of prior sexual activity in the usual sense, which there is a good reason to exclude as described by Zelling J in R v Gun; Ex parte Stephenson (1977) 17 SASR 165 at 173-4. In this case, there was simply a disclosure by the complainant when she alleged that she had been the subject of the same sexual activities committed by her paternal grandfather as those she claimed that she had been subjected to by her father. These latter, the subject of the offences alleged against the accused in the indictment presented at trial, was that ST licked AT's vagina, put his penis against her anus, put saliva on his finger and wiped it on her vagina, touching her clitoris at the same time, put his penis to her lips on two occasions, one when he touched her vagina at the same time and put his penis against her vagina and rubbed against it.

14. The cross-examination on the allegations against the complainant's paternal grandfather was as follows:

I want to ask you about some other things you said to those police ladies. When you talked about what happened at Jamberoo, that was true, wasn't it? --- Yes.

But then you said to the second police lady something about what Poppy did to you, didn't you? Do you remember saying that? You said Poppy did things to you as well, like Daddy? That wasn't true either, was it? --- No.

That was a lie, wasn't it? Do you remember when you spoke to the first police lady, during those breaks you would go and speak to Mummy and then you came back one last time to speak with the police lady, didn't you? --- Yes.

And you said to the police lady before you spoke to her that last time, 'Okay, one more story,' didn't you? --- Yes.

You saw that on the video, didn't you? --- Yes.

When you said 'story' there, what you told the police lady was a story, wasn't that right? --- Yes.

And sometimes stories can be true and sometimes stories can be not true, isn't that right? --- Yes.

And the story that you told the police lady when you came back then, that was not true, wasn't it? Is that right? --- Yes.

When you told the police lady that Poppy had done things to you where he had touched your mountain, that was a lie, wasn't it? --- Yes.

15. It was said that the medical condition of the complainant's paternal grandfather made it quite impossible for him to have carried out the alleged activities. Indeed, it was accepted that he had been interviewed by police about the allegations and no charges laid as a result.

16. The accused asserted that the allegations against him, as against his father, were untrue. He wished to rely on the falsity of the allegations against his father to undermine the credibility of the complainant. That would require the account of these allegations to be admitted in evidence, through the audio-visual recording of the making of them.

17. While s 102 of the Evidence Act 2011 (ACT) renders inadmissible credibility evidence (the credibility rule), an exception is provided for in s 103 which provides

1. Exception - cross examination as to credibility

(1) The credibility rule does not apply to evidence given by a witness in cross examination if the evidence could substantially affect the assessment of the witness's credibility.

(2) Without limiting the matters to which the court may have regard for subsection (1), it must have regard to -

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or happened.

18. As is clear from s 53(5) of the Miscellaneous Provisions Act, if the proposed cross-examination meets the test of this section, then it will be admissible under s 53(1)(b), unless excluded under s 53(3).

19. I have, in this case, the advantage of the actual cross-examination which has been recorded and, subject to this application, will be played to the jury, avoiding the problem identified by Penfold J in R v CH and JW at [64].

20. Clearly the word "substantially" in the provisions must have work to do. It appears not only in s 53(1)(a) of the Miscellaneous Provisions Act but also in s 103(1) of the Evidence Act. I see no reason why it should not have the same meaning in both cases.

21. In R v RPS (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Hunt CJ at CL and Hidden J, 13 August 1997), Hunt CJ at CL, with whom Gleeson CJ and Hidden J agreed, said at 29:

The addition of the word 'substantial' nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue.

22. In W v The Queen [2006] TASSC 52; (2006) 162 A Crim R 264 at 279; [46], Slicer J considered the meaning of "substantial" in the context of s 103 of the Evidence Act 2001 (Tas). That section is relevantly similar to s 103 though with, at the time, slightly different wording. His Honour held that "substantial" meant being of "considerable importance", "concerning the essentials" or "important in material terms".

23. It seems to me that the question of whether the complainant gave truthful evidence when asserting that her paternal grandfather committed sexual acts on her that were the same as those for which her father, the accused, was being prosecuted on her complaint could substantially affect the assessment of the credibility of the complainant (s 103(1) of the Evidence Act. It could do so because it was of considerable importance to know that the complainant had made allegations of a similar nature when the alleged events could not have happened and the complainant acknowledged that her complaints were false. This goes directly to her credibility. It is materially important to that issue.

24. I also consider that, given that the complaint was made when, in the interview with police, the complainant was exhorted, and agreed to tell the truth, she had an obligation to do so which, given that the acts of which she spoke were said by her to be done to her, any falsity in her evidence must have been knowing or, at the very least, reckless (s 103(2)(a) of the Evidence Act). Finally, I consider that the fact that the allegations against AT's grandfather are made in such similar terms to those allegations against her father, which found the charges in the indictment and in the same interview where those latter allegations are also made, supports the conclusion that the test of substantiality has been made out.

25. As to the other test, namely under s 53(3) of the Miscellaneous Provisions Act, it seems to me that, for largely the same reasons, the fact that the complaint made false and demonstrably false allegations, in relevantly similar terms to those the subject of these proceedings, and then admitted that she did so, is likely to impair confidence in the reliability of the complainant's evidence and to a substantial degree.

26. It may be that, as here, the two tests, namely under s 53(3) of the Miscellaneous Provisions Act and under s 103 of the Evidence Act, will often be very similar. After all, there will be considerable overlap between that which substantially affects the assessment of the credibility of the complainant and that which substantially impairs confidence in the reliability of the complainant's evidence. I do not have to consider that issue in this application.

27. I note, too, that the process encountered on this occasion may resolve some of the problems identified by Penfold J in R v CH and JW at [78]-[90]. On the other hand, one of the purposes of the prohibition on the evidence being adduced is, in the words of King J in R v Byczko (No 1) (1977) 16 SASR 507 at 539

... to protect alleged victims of sexual offences from the embarrassment and intrusion upon privacy involved in an investigation of their personal lives ...

If such cross-examination were regularly allowed (assuming that is permissible or permitted) when pre-trial recordings of the complainant's evidence is made and then applications for leave are able to be made later with the full knowledge of what has been said so that the relevant evaluations can then better be made, this may be easier or more accurate, but would substantially undermine an important part of the purpose of the prohibition.

In any event, this was an unusual case. It did, however, permit me to evaluate the application more effectively and find that the relevant tests were in fact met.

28. Accordingly, I gave leave for the evidence to be adduced.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the defendant: Ben Aulich and Associates