The Queen v McDermott

2 For reasons I will explain in a moment, it is clear that P is incapable of giving any further evidence on this trial. The prosecution now want the trial to continue, notwithstanding that the defence has not had a proper opportunity to cross-examine P before the jury. It contends that by the tender of the video and or transcript of the Basha inquiry[1] (which was conducted last week) any risk of unfair prejudice is minimised.

3 The defence contends that the evidence available does not satisfy s 65(3) of the Evidence Act 2008 (Vic) and therefore the Basha evidence is inadmissible. Secondly that, whether it is admitted or not, there is such a degree of prejudice to Mr McDermott that the jury should be discharged without verdict.

4 It is not necessary to set out the background to the application in any detail as it is covered in my first ruling at paragraphs [101] to [152].[2]

5 For the purpose of this application, the following is relevant:

(a) P, in P's VARE interview made the day after P's mother's death, said that P's father made a threat to kill P's mother on 24 March in a car shortly prior to P's handover (with her siblings) to P's mother and uncle.

(b) There is evidence from several other family members (including P's uncle, Joshua, and siblings, T and S) that P told them shortly afterwards of the making of the threat.

(c) The defence disputes that the threat was ever made. It relies particularly on statements made by Fiona Warzywoda (the victim), both to teachers and in court testimony, to infer that the first time P mentioned a threat was to teachers at her school some three days after it was allegedly made.

7 I granted an application by the defence for a Basha inquiry, which was conducted on 29 October 2015, with P giving evidence from a remote location.

8 To give evidence at trial, P attended at the remote location on 12 November 2015, unfortunately P's evidence was unable to be taken that day as a result of P's uncle Joshua's evidence taking longer than expected.

9 P commenced to give evidence on the morning of 13 November, and in the presence of the jury, watched the playing of the VARE interview. P was then asked by the prosecutor whether P adopted the contents of the interview - which P did. P was then asked about half a dozen further questions concerning the threat.

I just want to ask you about in that recording you talked about an occasion when you said that Craig said to you that he was going to kill your mum with the pocket knife. Do you remember hearing that on the recording?Yes.

Can I ask you when it was that he said that?I can remember it was a Wednesday.

Yes. In relation to the you were with Craig for some period of time, is that right?Yes.

Was it during that time that it occurred?He's yes, when we were alone with him.

And what were you doing that occasion?We were in the car.

Where were you going?We weren't doing anything.

Where were you going?We were going on the Wednesday that he gave us back, we were there and he stopped the car.

All right. And is that when he made that threat about the pocket knife?Yes.[3]

10 Counsel for Mr McDermott then commenced cross-examination of P shortly prior to lunch. That cross-examination occupies about six pages of transcript.

11 Unfortunately, a juror became sick over lunch. The case was adjourned and resumed the morning of 16 November. Counsel resumed cross-examination, which proceeded for approximately three pages of transcript (which also includes judicial interruptions). P was asked questions about a game called Grand Theft Auto (or GTA).

Men, women getting shot. You know that don't you?---Yes, yes.

People getting stabbed, you know that too don't you? Sorry, P, did you hear me?---Yes.

Are you right or do you want a break?[4]

At that point P ran from the remote room and I stood the case down.

13 About half an hour later I took evidence from Kylie Peters, a child counsellor with the Department of Justice. She told me that P was highly distressed and did not want to come back into the room.[5]

14 The gist of Ms Peters' evidence was that P was highly reluctant to give evidence and that there was a real contrast between P's demeanour at the Basha inquiry and that of yesterday.

15 During the course of the lunchtime adjournment it was arranged that P would see her counsellor, Veronica Grose, a clinical psychologist who specialises in child psychology. She has seen P on three occasions: 2 June, 30 October (which was the day after P gave evidence at the Basha inquiry) and 9 November.

16 Ms Grose also saw P briefly before giving evidence as to P's ability to continue in the trial, which was follows:

...bear in mind I didn't see P when P was distressed, I only saw P when P was calm, um, my opinion would be that if P were called back again P's anxiety would heighten very, very quickly and P would get upset. I would imagine, um, if P were to come back again that yes, P would get anxious very quickly if P was asked any inquiries.

...

If P came back in to give evidence what would the chances of P doing the same thing and running from the room occurring be?Well when I spoke to P and P was quite adamant that P didn't want to come back again, um, so I would imagine that it would be highly likely. I think P's arousal would go up very, very quickly if P were to come back in the room again and P's anxiety would therefore increase very, very quickly.

At the moment you've indicated that P's refusing to come back into the room to give evidence?Yes.

Do you think that's likely to change in the perhaps near future or in the distant future?That's really hard to answer. From what I saw today, um, it wasn't going to change, P's views weren't going to change.

Right. That is that P will maintain that P won't come into the room to give evidence; is that what you're saying?From what P was saying to me today, yes. It's hard to predict what P will be like in a week's time.

Yes?At the moment yeah, at the moment that's what P's saying to me.

If P did return in say a week's time and P was asked similar questions that P was asked today, do you have an opinion as to whether P'd behave in the same way?I don't have an opinion. What P did say to me, a challenge for P has been that it's been over a number of days and that's been an added stressor for P, so the more days P does it, the more stressful it is.

If P was forced to come back in and give evidence, does that pose any risk to P's ongoing mental health?Um, well in answer to that question I think there's been traumas for P with P's mother's dying and then the trauma of having to give evidence and um, so P's trust in adults I think um trusting the adults would look after P and listen to what P's got to say I think is a really important thing to consider for P, that adults listen is a thing, is really hard for P. [6]

Ms Grose, in the course of crossexamination of P, if it was to take place in the next day or two, I'm just looking at that period for the moment, it's likely to be suggested to P that P's made up some stories about things P might have heard. I'm just wondering in P's current state what effect that would have upon P?

I think that would be very anxiety provoking for her in her current state. I think it would be very distressing for her.

This is an impression that I have and I would ask you to comment upon it. When I saw her giving evidence on the examination we had about a week and a half ago P seemed a resilient quite confident young child. The child I saw today seemed very different in terms of reaction and in terms of confidence?Yeah.

I'm just wondering whether that fits or doesn't fit with your assessment of P over the last couple of weeks?That fits exactly with my assessment of P. When I saw P on the on the 30th P was very resilient and P was very accepting and today, P was yeah, P was saying yes, P wasn't as resilient. P was calmer but that's because P was out of the room and P wasn't being examined at that time. P wasn't giving evidence at that time. So yes, P was very different today and yeah, as I said, P was more withdrawn and certainly P's personality was very different today, or P's demeanour was very different today I should say.[7]

18 The prosecution rely upon s 65(3) of the Evidence Act. For it to be engaged, s 65(1) must be satisfied, which reads:

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.

19 The prosecution relies upon two provisions of the dictionary definition of unavailability:

4 Unavailability of persons

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

...

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success; or

(g) the person is mentally or physically unable to give evidence and it is not reasonably practical to overcome that inability.

20 In my view, the prosecution has made out both grounds.

21 In DPP v Nicholls,[8] Beach J said of the definition contained in s 4(1)(f):

Whilst there are no cases directly on point, there are a number of decisions in which courts have held that if a witness simply refuses to answer questions, that witness is taken not to be available within the meaning of clause 4(1) by virtue of the operation of paragraph (f). In Mindshare Communications Limited Taiwan Branch v Orleans Investments Pty Ltd, Hamilton J accepted a submission that the purpose of (f) "is to deal with the situation where the attendance of the witness has been secured, but it is impossible to obtain the evidence, because, for instance, the witness declines to give it on the ground of privilege or simply refuses to give it, whatever threats are made concerning the consequences arising out of a contempt of court".

The respondent submitted that the authorities to which I have just referred are distinguishable. The point of distinction was said to be that in each case, the relevant witness simply refused to give evidence. In the present case, there was said to be a difference between a simple refusal to give evidence and an objection to being required to give evidence being upheld under s 18 of the Evidence Act.

Reliance was placed by the respondent upon the Second Reading Speech in relation to clause 18 of the Evidence Bill. In his Second Reading Speech, the Attorney-General said in respect of clause 18:

"Clause 18 of the bill makes it clear that members of families of a defendant in a criminal proceeding are competent and compellable witnesses. However, such persons may object to giving evidence as a witness for the prosecution and, in certain circumstances, will not be required to give evidence. In this regard, members of a family include spouses, de facto partners (including same sex partners), parents, natural and adoptive children and children living in the household of a de facto as though they are the children of the defendant. This provision seeks to strike a balance between maintaining and protecting families and facilitating the administration of justice."[9]

22 Here, P was the subject of a subpoena. P was accompanied to the remote location room by a suitably qualified person, Ms Peters, who regularly counselled P both during the Basha inquiry and during the course of this hearing. The prosecution has, in my opinion, acted reasonably in endeavouring to compel P to give evidence, and no more could be done. It has partly, but not completely, succeeded. Paragraph (f) is satisfied.

23 In relation to s 4(1)(g), I am also satisfied that P is 'mentally unable' to give evidence on this trial. My observations of P is P that no longer presents as the resilient young child who gave evidence on the Basha inquiry. Quite clearly the duration of the time waiting to give evidence has played a part, as has the fact that P's evidence has been broken up.

24 The gist of Ms Gross' opinion is that P is in a state of high anxiety and that at least for the immediate purpose of this trial, this will probably not be able to be overcome particularly given that P will face quite lengthy cross-examination if P returned to the witness box.

25 I add to this my own observations of P over several days of P's evidence. I have the impression that P is a highly intelligent young child who has a perception beyond one's years of the significance of this proceeding. It is to be borne in mind that P is giving evidence in the context of P's mother dying in tragic circumstances and P's father having been removed from the family home and accused of murder. I think that it has all built up to a point where it has become too much for P. The change in P's demeanour and attitude is quite apparent.

26 I reject unequivocally the submission of Mr Desmond that the absence of a diagnosis means that I cannot be satisfied that P is mentally unable to give evidence. It was implicit, if not explicit, from the evidence of Ms Peters that P was suffering from a major anxiety attack. In any event, the diagnosis is of little utility when it is patent that P's mental state is fragile, and the question posed by the section does not call for a diagnosis but rather an assessment of P's ability to give evidence.

27 P is unavailable for the purpose of s 65(1). It follows that by reason of the defence's opportunity to cross examine P on the Basha inquiry, s 65(3) is engaged and the hearsay rule does not apply to the admissibility of the Basha evidence.

Should the jury be discharged because P is unavailable for cross-examination?

28 It is not of any utility to compartmentalise arguments under s 137 and those relating to the discharge of the jury. Essentially, the issues merge into one question - even with the evidence of the Basha inquiry, is there a real risk that Mr McDermott will be denied a fair trial, or to put it another way - have the defence shown the requisite degree of necessity to warrant the discharge of the jury?

29 The piece of evidence that is objected to by the defence under s 137 is the proposed tender by the prosecution of the Basha inquiry evidence. This application masks, to a large extent, Mr McDermott's real complaint, which is that to permit the trial to continue without a proper cross-examination of P would deprive him of a fair trial, notwithstanding the admission of the evidence of the Basha inquiry.

30 The prosecution contends that, with the admission of the Basha inquiry evidence and an appropriate direction to the jury, any risk of unfair prejudice is ameliorated and that the trial should continue.

31 The defence argues that there are many issues which were not canvassed on the Basha inquiry and that it was limited by direction as to how far it could take particular issues. Counsel also submits that it would be highly inappropriate (to the point of being grossly unfair) for the trial to continue given that the jury has seen P give evidence-in-chief (including P's reaction to the playing of the VARE tape) and only has a highly truncated piece of cross-examination. In those circumstances, it is argued, there is no prospect (even allowing for an appropriate direction) of a fair trial.

32 In DPP v BB,[10] the Court of Appeal made it clear that in considering whether evidence of a committal proceeding (including cross-examination) should be admitted, the inability to cross-examine a witness was a relevant, but not determinative, consideration.[11] In that case, the Court of Appeal held that the complainant's hearsay evidence of her kidnapping was admissible and that the inability to cross-examine at trial was not a sufficient reason to exclude the evidence under s 137.

33 Here, however, as I have endeavoured to explain, the position is quite different. I accept that, viewed in isolation, the tender of the Basha evidence would probably not attract the operation of s 137. But that is not the real issue - it is whether, assuming the tender of the Basha evidence, Mr McDermott will receive a fair trial.

34 The following observations can be made after analysis of the authorities.

35 First, not surprisingly, there is no authority which deals directly with the circumstances of this case - namely the adducing of hearsay evidence of a witness who becomes unavailable during the course of cross-examination, and particularly after giving evidence in chief. More importantly, there is no authority as to whether such a course will deny the accused a fair trial.

36 Second, decisions such as a Sonnet v R[12] demonstrate (albeit in a different context), the right of an accused to engage in the full cross-examination of a witness (or at least to have the opportunity to do so) is one of real significance.

37 Third, in determining whether to discharge a jury on the basis of ensuring a fair trial, there are several considerations:

(a) the nature of the prejudicial event or 'mishap' that precipitated the application;

(c) the likely effectiveness of a direction to overcome its apprehended impact; and

38 The ultimate question for the trial judge is whether, after consideration of these matters, the high degree of necessity required to discharge the jury has been established.[13]

39 Applying these principles to this application, it is apparent that:

(a) on the Basha inquiry, there were (for good reason) limitations imposed upon counsel for Mr McDermott's cross-examination of P, however this, in my view, did not inhibit counsel from questioning P in a robust fashion as to the reliability of P's evidence regarding the making of the threat; and

(b) there were a number of specific lines of questioning of P concerning the threat that were not pursued on the Basha inquiry and would, according to counsel, have been undertaken at trial, namely:

(i) whether P was influenced by a 'Grand Theft Auto' video game;

(ii) the evidence of hearsay statements of P's mother, Ms Warzywoda;

(iii) allegedly inconsistent evidence on the VARE interview;

(c) Against that proposition is the fact that there was, as I said earlier, a robust cross-examination at the Basha inquiry:

You've told us well, have a look at p.15, please. At the top of the page when you get it you'll see it commences with an answer to a question, if need be we can have a look at the question, but the answer says, 'He like said, 'I was going to kill your mum with this pocketknife', and I'm like, 'Why would you do that?' And then I started screaming and crying and I was like, 'Let me out of this car or I will get the pocketknife and stab myself', and I know that would probably be silly but I didn't know what else to do and he, like, put the door on child lock because he knew I was going to run out." Now, that's what you told Jamie Coles, didn't you? We can see it there in black and white and you've seen the video yesterday, agreed?Yes.

You know what a lie is because you've told the police and you've told the judge today you know the difference between truth and lies?Yes.

That's a lie, is it?No.

Is it the truth?I didn't scream.

You said, 'I started screaming' in the answer?I didn't.

So on one occasion you've said you did start screaming, another occasion, today, you said you didn't. Which is accurate?Today.

Today?I was confused at the time.

It was only potentially perhaps three weeks, maybe less than a month after your dad's allegedly said this, I withdraw allegedly do you know what 'allegedly' means?No.

I'll move on. It's only about a month, maybe less, since your dad has apparently said this, a lot closer, you follow?I don't get you.

Well, you say, 'I'm sitting in the car on the day I'm about to be given back to my mum', right?Yes.

And I can tell you that there's no issue it would be agreed, that's in March, it's in late March, okay, and March is the month before April, right?Yes.

And here you are on the 17th of April telling the police officer, 'This is what my dad said to me when I was in that car' and it's less than a month ago, do you follow? It's only a month later you're telling the police officer what your dad said how he was going to hurt your mum, you understand?Yes.

Yet here we are 18 months later, a lot longer, you follow?I understand.

Well the point is perhaps the events of what was said in the car were fresher in your memory then when you're talking to the police officer than what they are now because there's a lot ?I didn't I didn't scream.

Okay. Did you say, 'Why would you do that'?No.

Did you say, 'Let me out of this car or I will get the pocketknife and stab myself', did you say that to Craig, to your dad?I said that, not the day of it, I said it the day that he said when he stopped and he went to the boot and that night he stole everything from the house. That's a different day, right.

...

Just have a look at p 15 again. I want you to concentrate on where the words are, 'And I'm like, 'Why would you do that?' Then I started screaming, crying, and I was like, 'Let me out of this car or I'll get the pocketknife and stab myself'." Did you say that to your dad on any occasion?I said it when the first time he told me that.

Told you what?That he was going to kill my mum.

P, earlier on when I started asking you questions I asked you how many times did dad ever make any threatening comments like this and you said just the once and it was in the car on the day you were being taken back, do you remember that?Yes.

Have a look at two questions later on the same page, see the police officer's picked up on something, she asks you this, "Now you also said that dad came back to Bendigo and tried to kill mum", you heard the police officer ask that question, didn't you?No.

M'mm. But you see the response you give is, "Like he did because she's not here anymore". What did you mean when you said that, "Like he did"?I meant when she left for Bendigo.

Look, finally on this page, and there'll be no need to refer to the transcript again for my purposes, you'll see your next answer is, the police officer asked you, "When did he say that your dad first said to you, 'I'm going to kill your mum'. He said that on Wednesday the day he took us. So Wednesday of the week he first took you before he had to give you back", is the police officer's question. You said, "M'mm". You did

give those answers, agreed?Pardon me?

You said that, he said it, that he was going to kill your mum, he said it on the Wednesday, the first day he took you, which it may help, or it may not, is 12 March, is the Wednesday he took you. It's not the last Wednesday that you're saying to the police lady there. Do you follow what I'm putting to you here?No.

I asked you when did he say it, you know, when did he threaten your mum and you said, "It's the last Wednesday, the day he took us back to her". Here you are saying to the police lady, "It's the first Wednesday, the day he actually took us from her", you see the difference?Yeah.

Can you explain why you've said it differently on two different occasions?

...

When you said to the police lady, "He said that on Wednesday the day he took us", what did you mean when you said that back in April last year?I don't know.

Okay. P, I'm going to suggest something to you. It sort of has a legal concept to it but it's also a plain English word. If you don't understand what I'm about to suggest to you, you tell me. But I'm going to suggest to you, you and your siblings have made up this story that your dad threatened your mum by saying, "I'm going to stab her" or, "I'm going to kill her with a pocketknife", do you understand the question?I do.

Thank you. Just pause and reflect on it and when you're ready give us an answer. Are you ready? Is it possible this might all be a mistake when you said ?No, it's not.

Thank you.[14]

But, it is also clear that the cross-examination did not descend into some of the specifics to which I have referred.

(d) The evidence of the threat (viewed in the round, including the VARE and the Basha evidence) is of significant, but not critical value to the prosecution's case. There is evidence of other threats.

(e) As the prosecution submits, the evidence which may be used to support P's account will still be before the jury - i.e. P's mother's statements to other witnesses and in the court process. Similarly, any inconsistencies with the accounts of others who will have given hearsay evidence of P's statements can be evaluated by the jury.

40 Pausing here - if the application to admit the Basha evidence (and for that matter, the VARE interview) was made prior to trial and required solely the exercise of a s 137 discretion then it may well have succeeded in accordance with the principles set out in DPP v BB - that can perhaps be left for another day.

41 Here the situation is different - P has given evidence. The jury has observed P watch the VARE tape (which, quite understandably, produced an emotional reaction on P's part) and has seen P answer questions from the prosecution relating to the making of the threat.

42 The jury has the VARE evidence and the supplementary viva voce evidence - as yet untested - and at this trial, never to be fully tested. Whilst I accept that this was only a small section of evidence in the trial, it was powerful and had yet to be explored to any real extent in the cross-examination.

43 The trial has been in progress for one week. It has been the subject of several disruptions - none the fault of the parties. Only one witness apart from P has given evidence.

44 Any judicial direction would necessarily require the jury to evaluate the cross-examination on the Basha inquiry with an instruction that the defence has not had an opportunity to canvass all relevant issues with P notwithstanding that P gave evidence on the Basha inquiry.

45 Having thought long and hard about the appropriate course, I am persuaded that there is a sufficient degree of necessity to require the discharge of the jury.

46 The primary considerations in reaching this conclusion are as follows:

(a) the jury has seen P give evidence-in-chief (including P's reaction to the VARE tape) and is now confronted with a situation where there is no cross-examination of P in its presence;

(b) notwithstanding the tender of the evidence of the Basha inquiry, this is not an adequate substitute - in the context of this trial and how the evidence has been adduced (and this is fundamental) - for cross-examination in the presence of the jury;

(c) the trial is not sufficiently advanced to militate against a discharge;

(d) a judicial direction, whilst of some utility, will not overcome the prejudice to Mr McDermott caused by the truncation of P's cross-examination before the jury; and

(e) this situation has not been caused by any deliberate action by any party.

[1] Codified under s 198 of the Criminal Procedure Act 2009 (Vic).

[2] R v McDermott (Ruling No 1) [2015] VSC 615.

[3] Transcript of Proceedings, R v McDermott (Supreme Court of Victoria, S CR 2014 0195, J Forrest J, 13 November 2015) 843-844 ('Transcript').

[8] [2010] VSC 397.

[10] (2010) 29 VR 110.

[12] (2010) 30 VR 519.

[13] See Crofts v R [1996] HCA 22; (1996) 186 CLR 427, 440.