[42] In the present case the intention of the Crown is to introduce the video recordings of the two interviews in effect as the evidence in chief of the child. It is proposed that there will be some additional evidence led from him to clarify certain aspects of the records of interview but the additional material will be limited in scope. J will then be made available for cross-examination. The intention of the Crown is said to be to limit the stress or trauma likely to be suffered by J when giving his evidence.
[43] The issue for determination is whether there exists a basis upon which the Crown can proceed as it desires. In seeking the admission of the evidence the Crown relied upon the provisions of s 26E of the Evidence Act. It was submitted that each record of interview was a child's statement to another person and was admissible as an exception to the hearsay rule.
[44] The submission is, in my opinion, misconceived. The provisions for taking pre-recorded evidence and the receipt of that evidence are found in s 21B of the Act which is in a part of the Act dealing with the manner in which vulnerable witnesses may give evidence. Section 26E has a quite different purpose. It is found in a part of the Act dealing with miscellaneous rules of evidence. It is a provision directed towards providing a specific exception to the rule against hearsay evidence. The purpose of that provision is to allow the receipt of evidence that would either be inadmissible or admissible for a limited purpose because of the rule against hearsay. The section allows such evidence to be received and to be received as evidence of the facts in issue.
[45] The statements made in the records of interview were made some months after the event and cannot be said to have sufficient probative value as to justify their admission as evidence of the facts in issue. In this case the records of interview are not recent or spontaneous. They are not contemporaneous with the events to which they relate. There is no connection between those statements and the events to which they relate in the sense discussed by Gaudron and Kirby JJ in Papakosmas v The Queen. The records of interview are simply a further recounting of the story by the child witness.
[46] The source of the power to receive the video-taped records of interview of the child is to be found in s 21B(2)(a) of the Evidence Act. As has been observed, that section provides the prosecution with the power to elect that the examination in chief of a child be pre-recorded and given by video tape in "a proceeding in relation to an offence". At present the parties are about to undertake a special hearing as contemplated by s 21B(4)(a) of the Evidence Act. That hearing is a "proceeding in relation to an offence" for the purposes of s 21B(2). In such a proceeding the examination in chief of a child may be presented in accordance with s 21B(2)(a), ie the examination in chief may be given by video tape. The records of interview created by Detective O'Connor and Detective Wurst may be regarded as the examination in chief of the child J and may be received in the special hearing subject to the child being made available for cross-examination as required by s 21B(3) of the Act. Once the child has been cross-examined the whole of the evidence recorded at the special hearing (including the video-taped records of interview) may be used in the substantive proceedings by operation of s 21B(2)(b).
[47] Counsel for the accused submitted that, in the event that I found the evidence could be received into evidence, I should decline to receive it in the exercise of my discretion. Reference was made to R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 and to the need to ensure a fair trial.
[48] A review of the available material reveals that J, although only 9 years of age, has demonstrated a capacity to give evidence. In the preliminary proceedings he appears not to have been overwhelmed by the experience or to have demonstrated any lack of confidence in his ability to provide his account of what occurred at the relevant time. He was comfortable discussing matters with both counsel. There is no suggestion that the effectiveness of any cross-examination will be adversely affected if the video-taped statements are received into evidence.
[49] In his evidence at the committal proceedings, J reported having given a detailed account of the events to his mother soon after he returned from the home of Mr Joyce. No report was made to the police until late in February 2004. By the time he entered into the electronically recorded interviews of 3 March 2004 and 22 April 2004 the child had discussed the events with both his mother and his brother. There is no evidence that either the mother or the brother placed any pressure upon the child. Although the evidence is not entirely clear, it seems that within three days of his return they each asked what had happened at the home of the accused and the child responded with the complaints to which they each refer. By the time J was first interviewed by police on 3 March 2004 some seven weeks had passed since the time of his visit to Mr Joyce. After that interview police were informed by the mother that J had referred to further incidents and it was decided to conduct another interview. That interview took place on 22 April 2004, some 16 weeks from the date the events were said to have occurred.
[50] The interviews were conducted by different police officers. It is not suggested that the allegations made by the child in either interview were "so vague and general that it was impossible for an accused to make any sensible answer to them or might be so lacking in coherence and consistency that it would be unreasonable to ascribe any probative value to it, or might have been elicited in its entirety wholly by the use of leading questions or otherwise in circumstances which strongly suggested the contents were not in reality the statement of the child at all": RPM v R (2004) WASCA 174 at para 127 per Wheeler J. In the interviews the allegations made by J were sufficiently clear and specific to enable the accused to understand and respond to them. He provided an intelligible and coherent account of events.
[51] At the time of the interviews the events to which they related could no longer be said to be fresh in the mind of the child. By that time he had recounted the story at least twice. When interviewed he was not providing a spontaneous story to the investigating officer but, rather, was responding to the generalised prompting of the officer. On each occasion he was aware of the purpose of the interview. His mind was directed to the issues the officer wished to discuss. At the time of the first record of interview he had been told by his mother why he was being taken to the interview room. He was reminded by the interviewing officer that he had earlier told his mother about the incidents and he was then asked to tell the officer "all about what happened, what you told your mum". Thereafter he responded to the questions of the interviewing officer. The questions were not leading in nature. At the time of the second interview he was informed that it was taking place so that the accused would not repeat his conduct in relation to other children, providing an unfortunate start to the interview. J thereafter responded to the questions of the interviewing officer. Again there is no suggestion that the officer employed leading questions. The version of events provided by J was volunteered in response to non-leading questions. It was his statement of what occurred.
[52] The issue for me to resolve is whether I should admit the records of interview into evidence in the exercise of my discretion. The material in the two interviews follows, and is consistent with, what the child told his mother and brother shortly after the event. There is no suggestion that he is unable to recount the events in evidence in this court as he has done in another court in the past. What appears in the two records of interview is a further recounting of the events. The submission on the part of the Crown is that this evidence should be received rather than requiring J to repeat the story yet again as his evidence in chief. This is not a case where the Crown seeks to rely upon a written statement but rather reliance is placed upon video-taped recordings of the child making the statements. Those statements were made some time after the events of which complaint is made but much closer in time to those events than the date upon which any future telling of his story will take place.
[53] By virtue of the video recording it is possible for both the jury and the accused to fully appreciate the way in which the interview was conducted and the physical and facial reactions of the child during the course of the interview. The jury will be able to assess for itself whether the child regarded the process with the seriousness that the occasion demanded and whether he appreciated the need for accuracy and truthfulness. It can be seen that the child was, on each occasion, alone with the interviewing officer in the interview room and, to that extent, was not under the direct influence of any other person. The importance of telling the truth was impressed upon him.
[54] The child will be available for cross-examination in the special hearing immediately following the playing of the video tapes of the interviews. There is no identified reason why the leading of his evidence in this way will in any way affect the cross-examination or cause prejudice to the accused.
[55] The challenge to the admission of the evidence has centred upon the submission that the recording of the statements occurred in circumstances which made the evidence unreliable because, at the time of the recording of each of the interviews, the child was suggestible and, further, there was a risk of conscious fabrication on his part.
[56] In relation to the submissions that the witness was, at the relevant time, suggestible and that the interviews were tainted by interviewer bias I do not accept those submissions. I so conclude based upon the state of the evidence at the time of my ruling which, of course, is before the trial has commenced. Ultimately submissions to the contrary can be made to the jury if counsel be so instructed. For the present it is my view that the answers given by the child in each record of interview were inconsistent with him being able to be characterised as a suggestible witness. It is not necessary to review the records of interview in detail. It is sufficient to note that on a number of occasions he rejected suggestions made to him by the interviewer and on others he corrected misunderstandings held by the interviewer. The tenor of his evidence and the content of the records of interview do not reveal a child who is suggestible.
[57] In relation to the suggestion that the child was guilty of conscious fabrication I am, at this time, unable to see any basis for so concluding. It would be inappropriate for me to provide detailed reasons for my findings at this point of the trial. The question will ultimately be one for the jury to consider. However, I note that he gave his evidence to the officers in a straightforward manner. Although there are differences between his recollection of events and those of his mother and brother, those differences are, in all the circumstances, understandable. There is nothing in his evidence or the evidence of others that would lead me to be concerned, at this time, that he was deliberately fabricating the whole or any part of his version of events.
[58] I consider the evidence to be admissible as the evidence in chief of the child in the special hearing pursuant to s 21B(2)(a) of the Evidence Act. I see no reason to exclude it in the exercise of my general discretion. The whole of the evidence of the child may then be received at the subsequent proceedings pursuant to s 21B(2)(b) of the Act.