R v WR [2009] ACTSC 93

And I pause to add that the complainant is a child.

Delays in the court process are inevitable but work against children's ability to recount events long after they occur. For young children and people who are intellectually impaired, the ability to give cogent evidence many months or years after the event might be beyond their developmental and intellectual capacity, despite the fact that they are able to give coherent descriptions at the time closer to the events in question.

The pre-trial hearing, a unique pre-trial process, is held to facilitate the taking of the witness's [sic] evidence and as such the pre-trial hearing is attended by the judge, the prosecutor, the defence lawyer and the accused.

4. There have been in this matter some procedural complications arising in part out of the issuing of subpoenas for the bringing before the court of certain material. Some of that material included diaries of the complainant in which she recorded her thoughts and her dreams and other matters.

5. An application was made yesterday by the accused's counsel for leave to cross-examine the complainant on matters arising out of those diaries and other material, although most of the other material was ultimately not relied upon by the accused.

6. Because two days had been set aside for the pre-trial hearing, most of which were taken up with unfortunate procedural arguments, and I was able to take an additional day today to allow the proceedings to be concluded, I considered the application overnight.

7. It involved some complicated issues arising out of the Evidence Act 1995 (Cth) and the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the interaction between the two and the way in which the credibility rule now applies in relation to cross-examination of issues such as the prior sexual experience and other matters concerning the complainant.

8. This morning, having done the best I could to look at a vast amount of material which was handed up to me, without a great deal of assistance in identifying the way in which particular parts might be said to be relevant, I formed a view sufficient to announce a ruling today but without the opportunity to put my reasons carefully in writing which is necessary in these particular circumstances.

9. I ruled that the accused was not entitled to cross-examine on the material on which he had sought to do so. As a consequence of that I allowed a short adjournment for the accused's counsel to take instructions and upon resuming the proceedings I was advised that an application was made for an adjournment of these proceedings.

10. The application was to allow my reasons to be reduced to writing and for consideration then to be given to those reasons and a decision made as to whether an application should be made for leave to appeal against that decision and then, if leave was granted, presumably for an appeal to be made.

11. Mr Thomas, who appeared for the applicant and made his application carefully and thoroughly, relied heavily on the decision of the High Court in Queensland and Anor v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, a summary of which was, in essence, that case management considerations should not override the interests of justice, which even in matters such as adjournment applications should be given primacy and considerable weight.

12. That decision, despite some dilution of it in New South Wales, still appears to be good law in the Australian Capital Territory, as was held by the Australian Capital Territory Court of Appeal in AON Risk Services Australia Ltd v Australian National University [2008] ACTCA 13.

13. Mr Thomas indicated that he wanted to test the ruling, which was on a relatively new piece of legislation, and would be important in the conduct of the trial. He indicated that he wanted to give consideration to the reasons for the decision, and indeed as I have indicated, no reasons were given.

14. The legislation does require reasons to be given, but only if I allow the application, and although I do consider that it is appropriate in these circumstances to give reasons, the absence of reasons is not a breach of the legislation, and insofar as that is relevant it does not seem to me that it supports the application.

15. Mr Thomas did not mention, but yesterday when a proposal was put by the Crown prosecutor for a way in which one might deal with this issue, he did submit to me that he considered that it was important to deal with this matter to finality because of the way in which he proposed to conduct the cross-examination.

16. Unfortunately he did not give any particulars of that but did indicate that the "flow of the cross-examination" would be affected adversely if, for example, one were to conduct a cross-examination on these matters under a kind of voir dire process with the possibility for excision from the recording, if ultimately the material was held to be inadmissible. That may be so, but I will address that later.

17. Ms Jones, the Crown prosecutor, opposed the application. She made the point that in an ordinary criminal trial, decisions in relation to admissibility of evidence would be made and they would be accepted by the parties. It would be extraordinary and highly unlikely that a jury trial, for example, would be adjourned halfway through just to test a ruling on evidence.

18. She indicated that in her submission this particular proceeding should not operate in any other way than as with a criminal trial. She also relied upon the revised explanatory statement, and in particular on the part of it that I have set out above (at [3]), noting that delay in prosecution was one of the objectives that the legislation was intended to try and remove, at least so far as the evidence of the complainant was concerned.

19. She also relied on the interests of the community as expressed through the prosecution and of the complainant, as a witness who would be disadvantaged.

20. It is always important to be careful in making decisions in relation to adjournments, and I have given careful consideration to the submissions made by both parties. I do not regard issues of case management as particularly significant in this case. The interests of justice are important, and therefore while I accept, of course, what was said by the High Court in Queensland and Anor v JL Holdings Pty Ltd, it does not seem to me that it weighs particularly heavily either way in this particular matter.

21. I do note that there is a very strong and long tradition of courts setting their face against the criminal trial process being interrupted by rulings and interlocutory rulings, and there are some very strong statements by the High Court. In R v Iorlano and Anor [1983] HCA 43; (1983) 151 CLR 678, a joint judgment of the Court, the Court said (at 680):

However it seems necessary to repeat that it is highly undesirable to interrupt the ordinary course of criminal proceedings by applications for leave to appeal or prerogative relief for the purpose of challenging rulings on admissibility of evidence.

The fact that the court has expressed its conclusion on the substantive question at issue in the present case is not intended to encourage applications of this kind. Both applications are dismissed.

22. Later in Re Rozenes, Director of Public Prosecutions and Anor; Ex parte Burd and Ors [1994] HCA 11; (1994) 120 ALR 193, Dawson J said (at 195):

This court has repeatedly indicated that the fragmentation of a criminal trial by proceedings to contest the rulings of a trial judge, by way of either leave to appeal or prerogative relief, is highly undesirable and will only be allowed in exceptional circumstances (see e.g. R v Iorlano [1983] HCA 43; (1983) 151 CLR 678 at 680, Yates v Wilson [1989] HCA 68; (1989) 168 CLR 338 at 339).

23. As Brennan J said in Beljajev v Director of Public Prosecutions and Anor [1991] HCA 16; (1991) 173 CLR 28 (at 32):

The jurisdiction of this court is not fitted to the supervision of interlocutory processes of a criminal trial.

24. In Joosse v Australian Securities and Investment Commission [1998] HCA 78; (1999) 73 ALJR 232, Hayne J rejected an interlocutory application and said (at 234):

This court has said repeatedly that the criminal process should not be interrupted by testing interlocutory rulings that may be given in the course of proceedings. (footnote omitted)

25. In R v Elliott [1996] HCA 21; (1996) 185 CLR 250, a decision of the High Court, the prosecution there, having had critical evidence excluded from the trial, sought special leave to appeal. That special leave was rejected. The court consisting of Brennan CJ and Gummow and Kirby JJ said (at 257):

It is understandable that the ordinary course of criminal procedure in Victoria requires the interlocutory rulings of a trial judge to be accepted for the purposes of the trial, whether those rulings be right or wrong. If the rulings are wrong then, upon conviction, an accused person is entitled to challenge the ruling on appeal. But the prosecution has no such right. If the ruling results in an acquittal the ruling, albeit erroneous, can be canvassed on appeal, but only to correct the ruling - not to impeach the acquittal: see s 450A.

Obviously two considerations are in competition here. On the one hand, the prosecution is entitled no less than the defence to a trial according to correct rulings on questions of law. On the other, interlocutory appeals in criminal trials delay the trial and are likely to produce miscarriages of justice in ways unrelated to the ruling. The personal and financial stress of criminal trials, the dimming of witnesses' memories and the sheer delay between criminal conduct and the administration of condign punishment are factors which weigh heavily in favour of expediting the process of the criminal trial even though incorrect rulings have to be accepted by the prosecution in order to achieve that object, subject to s 450A.

1"> 26. Mr Thomas also referred me to a number of decisions of the Australian Capital Territory Court of Appeal, by which of course I am bound. In R v Sarlija [2006] ACTCA 22, an interlocutory application was made by the Director of Public Prosecutions in relation to a decision of the court, ruling certain evidence inadmissible. Having referred to the general provision, the court continued (at [14]):

We certainly endorse this view and would be most reluctant to grant leave to appeal from a mere discretionary ruling on admissibility of evidence. The submissions of the Director of Public Prosecution for the Territory highlight the exceptional nature of this case in that they raise a significant question of law of more general application and illustrate that the ruling is, in effect, determinative of the trial, because, if the fingerprint is inadmissible, then the Crown case against the respondent/accused would disappear.

The Victorian Director supported the submission that the matter raises a case of general importance and noted that his Honour's decision would be called in aid in proceedings before Victorian Magistrates and in the Victorian County Court.

27. In the decision of Kola v The Queen [2006] ACTCA 23, a decision of Crispin P on an application by the appellant for leave to appeal, his Honour granted leave to appeal and in doing so said this ([at 5]):

The second issue that arises is whether leave to appeal is warranted. It seems to me that there are two observations which should be made about that. First, it is common ground that the resolution of the challenge to the validity of the warrant may be decisive of the trial and that it is in the public interest for the matter to be resolved before the trial commences. Second, the legal issues that arise for resolution on the proposed appeal are serious and of potential importance to other cases.

28. It seems to me that this case is somewhat different from those two cases. It is true that the issue here is one of considerable importance and the interaction between s 103 of the Evidence Act 1995 (Cth) and s 53 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) is a matter of some public importance.

29. However this case is different in that my ruling is by no means decisive of the case. There is cross-examination allowable to the accused and that cross-examination can continue and can be completed.

30. The balance of convenience seems to me to be to proceed with the case today and if, in the intervening period between the completion of the pre-trial hearing and when the trial is actually listed, there is an opportunity and a wish to appeal against that decision, that can be taken. That has the effect that it will potentially mean that the complainant may have to come back and give further evidence, but that is only one outcome that is possible. It may be that the Court of Appeal will refuse leave or, if it grants leave, will ultimately reject the appeal, in which case the complainant would not have to come back and give evidence.

31. It seems to me that on the terms of the legislation and in accordance with the purpose of the legislation, at least insofar as it is expressed in the revised explanatory statement, it is preferable that the court takes the opportunity to complete the evidence consistently with the legislation if that is at all possible, and if there is a risk that the complainant will have to come back, then so be it. Indeed, that might happen, I suppose, if the trial were to continue and there is a conviction that is appealed and my ruling is overturned on appeal.

32. In my view, this does not prevent a fair trial. I have made the decision after anxiously considering the fairness, not only to the accused, but to the community. While the fairness to the community is important as is that to the complainant, obviously the fairness to the accused is of more significance because the accused is at greater risk and ultimately bears the burden at the end of the day.

33. In my view, the Human Rights Act 2004 (ACT), while relevant and mandating the right of a fair trial, does not change that position. It is not a zero-sum game, it is not the position whereby fairness to the complainant reduces fairness to the accused - both can sit comfortably together. The accused has had the opportunity of putting the submissions and they have been put in a strong way by Mr Thomas and I have made my ruling. He does not lose any right that he has and he is able to proceed. I am not satisfied on what Mr Thomas has said to me, insofar as I understand it, that any "flow" involved with the cross-examination will be so affected adversely that the right to a fair trial would be compromised.

34. I might finally say that it is a matter of concern to me that I was not able to give reasons now for my earlier decision, but it seems to me that those reasons are not really the genesis of the application. The genesis of the application is that the decision has substantially affected the way in which the accused wished to run his trial, and I understand that, and that he wants to challenge that, and he has a right in the appropriate time and circumstances to do so.

35. I do note what the High Court said recently in the case of Evans v The Queen [2007] HCA 59; (2007) 241 ALR 400 where (at [244]) Heydon J made it clear that the failure to give reasons for evidentiary rulings is not necessarily a ground for complaint and for adjournment.

36. In all the circumstances I am satisfied, having given as careful consideration as time will permit, that the application should be refused and that the cross-examination should proceed today.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: Director of Public Prosecutions (ACT)

Solicitor for the accused: Paul Edmonds and Associates