ACT.0013.002.0238 R gggggggg - Royal … I-oS HONOUR: Yes J have tilem. MR THOMAS: They're agreed to be deleted_ I-ns HONOUR: Let me just- 218,219, Q and A_ 20 MR 1l-IOMAS: And 220

ggggggggACT.0013.002.0238

MERRILL CORPORATION L£\'t! I, ~'Inpo .. -er Iioust, lJ.J5 Ainslie A"toue, CANBERRA ACT 2600 AUI'< 85120 213 381 Ttlcphonc: «(2) 62lO 4110 Fax: (02) 6230 4114

TRANSCRIPT OF PROCEEDINGS

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THE HONO URABLE CHIEF JUSTICE HJGGINS

SCC No 407 of 20lJ

THE QUEEN

and

CANBERRA

10.08 AM, WEDNESDAY, J2 DECEMBER 2012

fDA 112/ 12112 SCC407111

ACT.0013.002.0238_R


MS TASNEEM: May it please the court, Tasneem for the Crown.

I-US HONOUR: Ms Tasneem_

5 MR THOMAS: May it please the court, I appear for the accused, inslructed by S&T Lawyers, your Honour.

HfSl-10NOUR: Yes, MrThomas_ Yes, all right

10 MS TASNEEM: Your (-Ionour, there were some issues raised at directions for this matter on Monday regarding proposed redactions of the evidence-in-chief recording between the complainant and police.

15 H1S HONOUR: Right, yes_

MS TASNEEM: And in the interim, between Monday and today, we have rece ived some communication from my friend 's instructing solicitor. With respect to the redactions sought by the Crown, I understand my friend is reserving his position so I'm not sure where that takes us today.

20 Some additional redactions were proposed by my friend ; all but onc of those is not objected to by the Crown. So the question is how to proceed today in light of some of these redactions.

25 HIS HONOUR: Yes_

MS TASNEEM: My suggestion, yourJ-lonour, is that the areas in dispute or the area sought to be redacted can, once your Honour has made a ruling as to whether they can be ordered, can be done at a later time. And that would support my other application on Monday, which is that the

30 recording not be played today.

It has been common practice in other matters where it is simply tendered but on the proviso that what will be played at the trial and what is ostensibly tendered is the recording subject to the orders for redaction that

35 your Honour makes today.

I-ilS HONOUR: Yes_

MS TASNEEM: And your Honour, J make that application because the 40 alternative today is to simply fast forward the recording, if it is to be

played. So it would require the court recording of the proceeding to be passed, then the recording of the pol ice interview to be fast forwarded by my instructing sol icitor, so the portions that are sought to be redacted are then skipped. Then we resume play and resume the court recording.

45

ED' ~2I 1 2120 1 2 2 see 40711 1

ACT.0013.002.0239_R

ggggggggACT.OO13.002.0240

IDS HONOUR: Sounds qui te complicated. I don't know why it's necessary that it be that diHicult. I mean, ord inarily what we have is obvious ly we have the young person, who, if capable of doing so, gives evidence. Police interview, again subject to that proviso of course, is

5 tendered and they may then be argument about redaction, of course, of parts of it. And if I'm persuaded that is a good idea or appropriate, then of course I ordered the ed iting of the materia l accordingly_ But that they need to sec the material in order to be able to edi t it?

10 MS TASNEEM: The transcript can be provided thaI shows the portions that arc sought 10 be redacted, as your Honour wi ll know the actual content of it.

HIS HONOUR: Right. Well, that's a - the transcript, of course, is an aid 15 to understanding the actual televised interview itself.

20

MS TASNEEM: Yes.

I-US HONOUR: It's not evidence of it.

MS TASNEEM: Well, if it's just purely tor the basis of your Honour making a decision as to whether redactions should be ordered, in my submiss ion, the transcript would be a suffic ient basis for your Honour.

25 HIS HONOUR: All right. Well, if it is, I can deal with it that way. But is it? When you say - I presume you've seen it, Mr Thomas, have you?

30

MR THOMAS : Your Honour, can I assist your Honour freshly? In relation to - - -

l-US HONOUR: Well, nOljust firs tly, perhaps several times.

MR TI-IOMAS: Sorry, your Honour?

35 HIS HONOUR: Not juS! firstly, but go on.

MR ll-l0MAS: Sorry, your Honour. In relation to the suggested redactions that we put forward, that was questions 2 18, 2 19, 220. They are agreed. In relat ion to 225, my friend advised my instructing solicitor,

40 I think, by emai l sometime today or yesterday that question and answer 224 was incorrectly transcribed. So that does affect the application we made in relation to question and answer 225. In the light of that being corrected, then we have no objection to 225 as it stands, but 224 Q&A needs to be corrected . Now - - -

45

fDA 11211212012 3 see 40711 1

ACT.0013.002.0240_R


I·US HONOUR: Right. When you say corrected - - -

MR THOMAS: h's incorrectly transcri bed, I'm told.

5 HJS HONOUR: Yes, I mean, that's one of the problems with, of course, transcripts.

MR THOMAS: Yes, precisely, your Honour, yes.

10 HJ S HONOUR: They are only an aid to understanding what is actually said.

MR THOMAS: Precisely, yes.

15 HIS HONOUR: Alld for that very good reason that you've just mentioned, that it may be incorrectly transcribed.

20

25

MR THOMAS: That's right, yes. Your Honour, can J then take you to some other legal issues?

I-DS HONOUR: All right. Well, firs, of all, let me just get clear what material I'm supposed to have before me.

MR THOMAS: And what I was going to say is - yes. I'm sorry.

1-Il S I-IONOUR: Because I don't have the transcript

MR THOMAS: No.

30 HIS HONOUR: Vet.

35

40

MR THOMAS: In relation to the· I've lost it for a moment. Pardon me, your Honour_ In relation to the questions and answer the Crown was seeking to excise which was - - -

HlS HONOUR: Well, perhaps we'd better start with the material here. don't have a transcript of thaI record of converSation.

MR THOMAS: No. No, if I could j ust- perhaps - --

I-US HONOUR: Perhaps I should have it before so I can follow what it is you're putting.

MR TI-IOMAS: Yes, that might be appropriate, your Honour. My fr iend 45 might have a clean copy.

OA 2112120 12 4 see 407/ 11

ACT.0013.002.0241_R


HI S HONOUR: All right. Ms Taslleem, could you - --

MS TASNEEM: Yes, your Honour, J have both a clean copy but also one 5 that bas the parts that we are seeking to be redacted marked out.

I-IIS HONOUR: Well , iI's okay to have it marked because I need to have my attention directed to thaI anyway.

10 MS TASNEEM: Yes, yes.

}-OS HONOUR: So that is quite reasonable. Now, do you also have the recording?

15 MS TASNEEM: Yes, I do, your Honour.

20

HIS HONOUR: All right. Well , J would suggest you tender the recording and the lranSCripl ori l. We don't necessaril y play the recording now but it should be the primary ev idence.

MS TASNEEM: Yes.

MR lliOMAS: We are objecting the admissibility afit, your Honour.

25 HIS HONOUR: The admissibil ity, what?

30

35

MR THOMAS: Of the recording, your Honour.

J-llS HONOUR: I'm sorry, I don' t quite follow.

MR THOMAS: I'll take your Honour to it in a second but there's a step that needs to be taken.

HIS HONOUR: Well , I have to sec it fi rst.

MR THOMAS: But on the voir dire J don't object, your Honour, yes.

HIS HONOlJR: All righ~ yes.

40 MS TASNEEM: Your Honour, I tender the recording of the evidence-inchief interview between De d Constables Amanda Johnsl.on and Senior Constable Kim Nguyen and also the transcript as an aide memoire.

OA 1211212012 5 S C 40711 I

ACT.0013.002.0242_R


H:J S HONOUR: Thank you. Well , as far as th is application is concerned that wi ll be Exhibit I .

5 #EXFJIBIT 1 - RECORDING AN D TRANSCRIPT OF INTERVIEW BETWEEN fOE lAND CONSTABLE JOEINSTON AND SE, lOR CONSTABLE NGUYEN

10 I-US HONOUR: Now, let me look at it.

MR THOMAS: Your Honour, if I take you 10 question and answer 218, 219 and 220 which is on page 18 and 19, your Honour.

15 I-oS HONOUR: Yes J have tilem.

MR THOMAS: They' re agreed to be deleted_

I-n s HONOUR: Let me just - 218,2 19, Q and A_ 20

MR 1l-IOMAS: And 220.

I-IJS HONOUR: And 220?

25 MR 'mOMAS : Yes, your Honour.

HIS HONOUR: Yes, okay.

MR THOMAS: In relat ion (0 Q and A 224, what is there we're now told 30 is incorrectly transcribed and needs to be corrected.

HIS HO 'OUR: And how should it read?

MR THOMAS: I understand - pardon me a second, your I-Ionour. 35

I-IJS HO OUR: Agreed - well, just to recap, 218, 219 and 220?

MR 1l-IOMAS: Yes.

40 I-I IS HONOUR: 221 is not the subject of objection, or is it?

MR THOMAS: No, your Honour, no.

HI S HONOUR: Okay. So that block of questions and answers is agreed 45 to be redacted in due course?

OA 211212012 6 see 40711 I

ACT.0013.002.0243_R

ggggggggACT.OO 13.002.0244

MS TASNEEM: Yes.

MR THOMAS: And apparently 224 should read, 'C)_Ie was wiggl ing it a 5 lot."

,-us HO OUR: " Wiggling it." Well, that makes much morc sense I must say, yes.

10 MIt THOMAS: Then, your Honour, - --

l-llS HONOUR: And, indeed, the next question repeals, no doubt, the answer is understood.

15 MR THOMAS: That 's right, your Honour, yes. And then Q and A 226 to 312 inclusive.

~US HONOUR: 226 to 312.

20 MR THOMAS: Inclusive.

I-US HONOUR: That 's already noted on this document.

MR THOMAS: Yes. And we agree with those questions and answers 25 being deleted.

I-US I-IONOUR: So, that one is an agreed redaction, yes.

MR THOMAS: Now, your Honour, if I can take you to just a couple of 30 matters before I start., what I want to put to your Honour. As I understand

it there was a directions hearing on 29 May 2012 and a further directions on 5 September 20 12 where it set a date for a pre-trial hearing. Also, 011

21 September 2011 , and I have a copy for your Honour if your Honour needs it, a section 40(0) notice was served on my instructing solicitor.

35 l·llS HONOUR: Right, okay.

MR THOMAS: Your Honour, as I would understand it, that combined with - I think it's rule 7, rule 4373 - J've lost it now. Yes, sorry, rule

40 4737(b) - --

45

HJS HONOUR: Just pause for a moment?

MR THOMAS: - - - enlivens your Honour's jurisdiction.

~211 2120 1 2 'scc407111

7

ACT.0013.002.0244_R

ggggggggACT.OO13.002.024S

I-liS HONOUR: 47?

MR THOMAS: 37.

5 I-ilS HONOUR: 37, yes.

10

15

20

MR lliOMAS: 4737(b), because your I-Ionour will appreciate that the pre-trial hearing is not defined and doesn't appear in the legislation as a - -

HIS HONOUR: No.

MR THOMAS: That's right. And that's a jurisdictional issue which may

I-ns HONOUR: I'm not sure if it's jurisdictional. 1 think it 's more a question of power.

MR THOMAS: Well, I think that's ri ght and that 's - --

l-US i-IONOUR: The power's al ready there and that regulates the exercise of it.

MR THOMAS: And that's why I drew your Honour's attention to that 25 rule and 1 think that covers that.

HIS 1-10 OUR: All right.

MR THOMAS: Your Honour, then we come to the record of interview. 30 'TIlat is it's an audio visual recording and it 's a police record of interview

with the complainant.

HIS 1-10 OUR: All right, yes.

35 M.R THOMAS: And if I might, because there's some confusion, I'll police interview for a second [rom what I understand.

t-Il S HONOUR: No, no, that's perfectly reasonable.

40 MR THOMAS: And the submission is that before that can be entered into evidence your Honour has to rule on admissibility and that there are two stages to that admissibility question. And, your Honour, we have a set of authorities for your )-fonour.

45 HIS HONOUR: Yes.

OA 1211212012 8 see 40711 1

ACT.0013.002.0245_R


MR THOMAS: 1 hand those up. And we say there' s two steps to the issue of admissibility that your Honour has to address. Firstly. there is the issue of competency of the complainant at the lime he gave the interview

5 and then the admissibili ty of fairness, section 137 of the Evidence Act.

10

15

20

25

30

f-U S HONOUR: Now, you' re going to the Miscellaneous - --

MR THOMAS: Probative, prejudicial probati ve.

HIS HONOUR: - - - or the Commonwealth Evidence Act?

MR THOMAS: No. the Evidence Act, your Honour. Well, the Territory one, your Honour, - - -

HJS HONOUR: That 's the Miscellaneous Provisions.

MR THOMAS: Yes, sorry. I lhought you were referring to the other Miscel laneous Provisions Act, yes. 137, your Honour.

IDS HONOUR I mean, there are two aspects. One is the, if I can put it this way, the repatriation.

MR THOMAS: I'm sorry, your Honour?

I-oS HONOUR: Repatriation of the Evidence Act (Cth) to make a Territory Legis lation.

MR THOMAS: Yes.

illS HONOUR: So, that's ~1e Evidence Act 2011.

MR THOMAS: Yes.

35 1-I1S HONO UR: I assume it 's in operation.

MR THOMAS: I have a copy oryour Honour needs it.

H1S HONOUR: I have it. No, I have it. 40

MR THOMAS: It 's also extracted in Odger's.

I-OS HON OUR: Sorry?

45 MR THOMAS: It's also now extracted in Odger's.

~211 21201 2 '-sc1:;;m'711 1

9

ACT.0013.002.0246_R

gggggggg

5

ACT.0013.002.0247

I-US HONOUR: Yes, well , it's the same as the Commonwealth Evidence Act. It's just it has the status of a Territory Act rather than a Commonwealth Act

MR THOMAS: Yes and Lllat's what I was addressing.

l-I1S HONOUR: Which, of course. does have some consequences, or may.

10 Ml~ THOMAS: Yes.

HJS HONOUR: In any event, you're going to that Act first or - is it?

~ THOMAS: No. 15

I'OS HONOUR: Or Miscellaneous Provisions Act?

MR THOMAS : If I can take you first of a ll to - --

20 1·I1S HONOUR: 40(0) is the Miscellaneous Provisions.

25

30

35

MIl THOMAS: Yes, yes. And, your Honour, - --

I-OS HONOUR: 40 is a record ing notice, yes.

~ THOMAS: And if you go to section 40(F), section 40(F) you will see that (l)(b) is significant. That, "lfthc recording is played at the hearing be admitted as the witness' evidence- in-chief in the proceeding as if the witness gave the evidence at the hearing in person."

HIS HONOUR: Yes.

MR THOMAS: So, that, we say, brings in, firsLly, the issue of competency. And there's some authorities I can take you to.

HIS HONOUR: Yes, indeed, because it' s - --

~ THOMAS: And then, secondly, - - -

40 HIS HONOUR: - - - no doubt to be regarded in the same ways if the ev idence or the witness were tendered as being capable of giving evidence-i n-chief.

MR ll-iOMAS : Yes, precisely, your Honour. 45

fDA 112112/2012 10 see 40711 1

ACT.0013.002.0247_R


'-llS HONOUR: This is the way in which it's given rather than affecting its character.

MR THOMAS: And subparagraph (2), "The court may refuse to admit a ll 5 or any part of the visual recording." Just for completeness of course. your

Honour, if your Honour then goes to section 40(S) which applies where the audio visual becomes part of tJle evidence-in-chief of the complainant and, - there is evidence of the - sorry, I'll withdraw that - and there is evidence given by the witness, that is the complainant, in-chief then that

10 must be recorded. That may include the audio visual. The audio visual must be admined in evidence at the hearing as if the witness gave the evidence at the hearing in person.

So, and we say, your Honour, there's the two steps insofar as competency 15 is concerned. Your Honour needs to determine competency in relation to

the complainant at the time he gave the record of interview and, secondly, competency in relation to giving evidence in lhis court in this hearing directly_ And, your Honour, also because of admissibility - --

20 HIS HONOUR: Well , - - -

MR THOMAS: I'm sorry.

HIS HONOUR: I mean, this hearing being in advance of the hearing of 25 the case.

MR THOMAS: That's right, your Honour, yes.

HIS HONOUR: And as then deemed to be evidence given at the hearing, 30 although I don ' t think it precludes the witness also being called at the

hearing if that were - --

MR THOMAS: A second time, yes.

35 [-llS HONOUR: - - - if that were deemed appropriate for any particular reason.

MR THOMAS: And once again your Honour then would, at that time, would also raise an issue of competency at least in the situation of a young

40 child once again in that situation.

HIS HONOUR: I think section 40(T) addresses that eventual ity.

MR THOMAS: And, your Honour, additionally the admissibility point is 45 that there is the issue of fairness because - and J can cut quickly to that

fDA PI12120 12 It see 40711 1

ACT.0013.002.0248_R

ggggggggACT.OOI3.002.0249

chase, insofar as the defence is precluded from cross-examlnmg the complainant, in relation to - or in the context of that original police recording so it has a particular status, in relation [0 it. I say that because, your HonouT, the Court of Criminal Appeal in the United Kingdom has

5 passed on this recently in the matter of R v Sed, onc of the aulhorities that we've handed up, your Honour. That is [2004] EWeA erim 1294.

I·US HONOUR: Ves I see it.

10 MR THOMAS: The decision of Auld LJ - - -

15

20

I-US HONOUR: This index doesn't seem to be enumerated.

MR THOMAS: I 'm sorry, your Honour?

I-US HONOUR: It's not numbered. I mean you've got tags here which I assume would correspond to a number if it were placed - --

MR THOMAS: I'm sorry, your Honour.

~US HONOUR: - - - beside the case.

MR THOMAS: Yes, I have it. It's the second-last one, your Honour.

25 I-US HONOUR: Yes I see that. I presume that's the second-last tag, is it?

MR THOMAS: Yes it should be your Honour, yes. I'm sorry, your Honour.

30 liS HONOUR: All right well there - --

MR THOMAS: And I'm just simply putting that there's that admissibility point and section 137(i) - - -

35 IllS HONOUR: \Vbere's that addressed?

MR THOMAS: [f your Honour looks at - and I should have down - 16 to 49, 61 to 63 per Auld LJ and I po int out that it is a different set of decisions, or statutory provisions in the Unitcd Kingdom. But it provides

40 for police videos being played in the trial and the court said well there are two steps to that process. One is that competency issue, but there's also the question of fairness. the admissibility interest justice lest. And although that comes from a statute point, what we say hcre is because this statute requires your Honour to rule on admissibility there can be no

45 reason for reading that down to limit it simply lO competency. It must

fDA 1121121201 2 12 sec 407/ 11

ACT.0013.002.0249_R

ggggggggACT.OOt3.002.0250

also apply to other issues about admissibility.

HlS HONOUR: Well ifthcrc's any other issue that goes to it.

5 MR THOMAS : Precisely. your Honour, that 's all ] was thinking to put to you at this stage.

HIS HONOUR: And their admissibility includes a proposi tion sometimes put in relation to evidence that even though relevant and otherwise

10 admissible, it should be excluded on the grounds of unfairness or some other good cause.

MR THOMAS: Precisely, yes and that's what J was putting. So I s imply at this stage just drawing your Honour's attention to those steps. And in

15 relation to the competency point, your Honour, and a Jot of those authorities deal with that, if your Honour goes to section 13 of the Evidence Act - - -

20

25

HIS HONOUR: Are you talking about the 20 I I Act?

MR THOMAS : 2011 that's right, your Honour, yes.

I-IlS HONOUR: Which will have the same - still, as the section 13 of the Commonwealth Act.

MR THOMAS : Yes well exactly the same. And here onc af the issues is that which your Honour decided in the decision of the R v Cooper, which is (2007) 175 A Crim R 94, relevant paragraphs 40 to 63.

30 1-IlS HONOUR: And you've presumably got that in your bundle, I imagine?

35

40

45

MR THOMAS: Yes, your Honour, yes and it is the fifth tag in, your Honour. 1 apologise for not numbering the tags.

HlS HONOUR: There seem to be 10 matters and I lake it the tags follow that enumeration if we ~ - -

MR THOMAS : Ves they do, indeed.

HIS HONOUR: I might make those numbers just for my own convenience i f you like.

MR THOMAS: Ves I apologise_

fDA '211212012 SCC 40711 1

13

ACT.0013.002.0250_R

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5

ACT.0013.002.0251

HJS HONOUR: That's all right you've already done that No need to repeat it. Okay I' ve done that. I' ll now go back to tag 5.

MR THOMAS: J th ink it was five, your Honour.

~US HONOUR: That 's RJ v The Qlleen that one; No 6 R v Cooper.

MR THOMAS: Sorry, yes No 6 R v Cooper 175 A Crim R 94 at paragraphs 40 to 63. And there your Honour was dealing with a child

10 who was under 10 and the issue about whether that child was competent. Your Honour ultimately ru led that the child was not competent and one of the issues turns on what happens when we' re dealing with - or in the course dealing with that issue of competency.

15 And Cooper is important because your Honour found that - or held rather that paragraph 13(5)(a) as it now is the warn ing ;' it is important to tell the (ruth:· was not a mere ritual , but there had 10 be something more to it. That is an acceptance and acknowledgement of it.

20 And that what we say is that your Honour firstly would not accept that this witness is competent or was competent at the time of the police record of interview or in this court. to give sworn evidence - whether sworn or affirnled by oath or affirmation - and that your Honour would need to then address 13(4) as to whether that person is competent to give unsworn

25 evidence.

And that relates to the two stages of the evidence, that is the police record of interview at the time and in this court. And the authorities that we've handed up just simply emphasise the two stages of the test and emphas ise

30 that it is ultimately a matter of judgment, but fo r your Honour.

We've also included in the list of authorities to decis ion of Kirk v Industrial Relations Commission oj (NSW) (20 10) 239 CLR 53 1. And there is really for the matter of completeness your Honour is obviously

35 aware of the issue in Kirk of jurisdictional error. But the important point for th is maneT is that the Full High Court, both in the majority judgment and in Heydon J 's - l 'l l put in a small 'd' dissenting judgment because he didn' t entirely dissent - confmns that section 190 - and we have the same section in the 20 11 Act - cannot permit a waiver of the competency rules.

40 I just simply put that in. And of itself it says that and that' s just confirmed .

And, of course, in that decision the Industri al Relations Commission of New South Wales and ultimately the Court of Criminal Appeal both

45 agreed that the competency issue could be waived, and in that case

14

ACT.0013.002.0251_R


Mr Kirk who was the defendant was pennilled to g ive ev idence in the prosecution case. And the Fu ll High Court said that was egregious en'or, r think is the way fairly to describe it. It certainly was a fundamental CITor, jurisdictional eITor and on that ground, as well as the other ground, the

5 decision at the lower levels fe ll.

And that's just put there for that issue because what we would say is quite clearly, as your Honour has acknowledged, that the issue of competency in relation to the police record of interview itsel f raises that issue if it were

10 to be ignored.

Your Honour's obvious ly ahead of me in that so I don ' t need to take your Honour to it, but Kirk is put 111ere fo r that completeness and just to tie it all in, in a sense. So, your Honour, what we would say is that the first step

IS must be the issue of competency and admiss ibi li ty and that clearly requires, as your Honour indicated - - -

IDS HONOUR : Competency goes to admissibility.

20 MR THOMAS: Yes ] agree, your Honour, and 1 have verified them and to some extent I accept that that is not the correct way of expressing it. But the section talks of admissibility and includes both, I accept that. But what that does mean is that in order to determine - as something fell from your Honour before when talking to my friend - your Honour needs to

25 look at the video on the voir dire at least on that police record of interview.

30

35

H]8 HONOUR: Yes weil l would have thought that would be olle aspect ofit---

MR THOMAS : Precisely yes, yes.

I-LIS HONOUR: - - - if J was not to advance that proposition, but it should be looked at.

MR THOMAS: Yes. Well of course it may not I accept that. your Honour, but yes it needs to do that. So we say that 's what your Honour has to first do on the voir dire and then, of course, if it 's admitted it can become evidence in the hearings in all ways. And un less your Honour

40 needs me to lake you to the particular authori ties - and J've set out - - -

I-US HONOUR: No I think we've covered most of those in the case of Cooper.

45 MR THOMAS : TIlat is cOITect, your Honour, yes. Could J say this in

fD"Il 21 I 2120 12 'SCC-40'7I1 I

15

ACT.0013.002.0252_R


relation 10 Cooper is thai I note that the learned aUlhor of Odgers lakes the view that the decision is incorrect if I can put il that way. With respect his argument - - -

5 HIS HONOUR: Ves - --

MR THOMAS : Well I don' t 1010W whether it's in the book there. It's in the loose leaf service, but with respect the learned author's argumenls appear to be Kafka-esque, and referring 10 very much 10 the trial si tuation

10 in Kafta(?) and Jul ius Stones' categories of - --

H1S HONOUR: lndeterminate reference.

MR THOMAS: I'm sorry, your Honour? 15

HIS HONOUR: Indetenninate reference, or multiple reference.

MR THOMAS: Yes that's exactly right, yes.

20 HIS HONOUR: Which one?

MR THOMAS: It 's very difficult to te ll , your Honour, because I think there 's no substance in what, with respect, the learned author puts, because if one were to accept that proposi tion - and there's something else

25 I need to say ahout Cooper - if one were to accept that proposition, then there is no force to the Evidence Act at all in relation to giv ing evidence, and it renders the whole thing ludicrous.

Now, the second point to be made is that Cooper has not been, in any 30 way, oveffilled or commented on, and simply stands as the decision in

relation to the matter, and with respect it has to be correct because otherwise 5(1) is meaningless.

ms HONOUR: 5( 1). 35

MR THOMAS: Subsection 5( 1)(xiii), your Honour.

I·n s HONOUR: Well , there's an (a).

40 MR THOMAS : Well , (a), is it, your Honour? Yes, (a).

45

HIS HONOUR: Well , J don ' t know - I haven' t seen what the author's said about my decision, but I'd be surprised ifhe felt that tell ing a witness thai it' s important to te ll the IruLh was a meani.ngless ritual.

fDA 11211212012 16 see 407/11

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MR THOMAS: Well , that's right, your Honour. 1 just find that whole discussion just - - -

HIS HONOUR: Well , I haven' t seen the discussion. Can you tell me 5 where it is?

MR THOMAS: Yes, your Honour. As I said. I don't know whether it 's in the service - in the book, but - - -

10 HlS HONOUR: It's the 10th edition that I have.

15

MR THOMAS: Yes, I don ' t know whether it ' s in that, but ifI hand up this, your Honour, it's at 1.2.160 of the loose-leaf service. I'm simply drawing it to your attention because that's an issue, 1 suppose, and - --

HIS HONOUR: It may be.

MR THOMAS: But clearly Cooper has not been overruled.

20 HIS HONOUR: Well , it's not been overruled as far as I know.

MR THOMAS: Well, the searches show it hasn' t, nor has it been ever even criticised.

25 HIS HONOUR: Yes, I'm not sure - the logic of it does escape me, I' m afraid. I mean, I understand completely that it is a precondition to giving unsworn evidence that the witness be so infonned, but if the witness doesn't even understand that - --

30 MR THOMAS: Precisely, your Honour, precisely.

HIS HONOUR: - - - then they haven' t been infonned.

MR THOMAS: No, precisely, your Honour, and it seems to me that 35 that's - the argument is - --

HIS HONOUR: Well , r don't know whether there's any challenge to that in this case, but certainJy you don't challenge it, I appreciate that.

40 MR THOMAS: No dissent to challenge to any of the other authorities anywhere in relation to that point.

45

HlS HONOUR: All right. Well, that having been said, wbat do you say is the conclusion that might be urged here?

fDA 11211212012 17 see 407111

ACT.0013.002.0254_R


MR THOMAS: Well , your Honour clearly has to . well, before I answer thai, your Honour, can j just take you finally to section 189 in relation to the Evidence Act, the 20 II Acl.

5 HIS HONOUR: Okay. I take it you've finished referring to the binder?

MR THOMAS: Yes.

HIS HONOUR: So I'll hand that back to you. 10

MR THOMAS: Thank you, your Honour.

I-US HONOUR: And this is section what?

15 MR THOMAS: 189.

HlS HONOUR: 189, just a moment, 189.

MR ll-IOMAS: (I)(c). Just for completeness, your Honour, it just selS 20 out a - --

HlS HONOUR: Yes, yes.

MR THOMAS: That' s all. And that.'s commented on in lhe authorities as 25 well.

HIS HONOUR: All right.

MR THOMAS: What we say the consequence is, your Honour, is that at 30 both times the - if one gets to the position of section 13(4), then subsection

(5) requires the court to tell the person, and the effect of that in the light of Cooper must be - and there can be no purpose to (b) and (c) unless this is the case, in our respectful submission, it is required that the court not only ascertain that the witness understood and accepted - understood, but also

35 accepted in the way that you expressed it in Cooper the obligation to tell the truth.

And that' 5 emphasised by (b) and (c). because those words can be meaningless - are absolutely meaningless unless there' s some response

40 from the witness that indicates that they're capable of understanding.

I·ns HONOUR: Well , I mean, it may be, of course, not entirely possible 10 fu lly get inside the mind of the witness. Dut one would need to be confident that the witness - I suppose this is a question of presumptions or

45 onuses.

OA 21 1212012 18 see 407/11

ACT.0013.002.0255_R


The presumption is that the witness will understand it, and the presumption is the witness will obey the direction. That's the presumption. And in effect if that 's displaced it, then seems to me that

5 subsection (5) would n01 be sati sfi ed.

f\1R THOMAS: Yes. And your Honour, the authorities also point out that, with respect, there is no onus on the Crown or the defence to raise the matter. It is a matter for the court, and with other authorities - and there' s

ID a number of New South Wales authorities 1 can take your Honour to if need be about the obligation of the judge, and I don't put that in any pejorative way. but under the section to examine the wi tness and to ascertain whether it can be satisfi ed - in the Light of Cooper it can be satisfi ed that they understand and accept that obligation of telling the

1 5 tru~l.

And that really must be the touchstone of admissibil ity in the evidence, and while in Sed's case, the Court of Crim inal Appeal points out that an 81 year old Alzheimer victim may well give halting answers, that does not

20 mean that they ult imately do not become competent. But here the dist inction is - (5), is that there has to be a positive, we say in the light of Cooper, a positive finding by the court, aJbeit on the balance of probabil ities, that the person accepts and understands the obligation to tell the truth, and then (b) and (e).

25

30

35

And I suppose - - -

H1 S HONOUR: I'm not sure if that's right. I didn ' t define it that way. I mean, I defined it, J think here at page 104:

.. . to my mind that they were able (0 give 10 M<; Jones examples when questioned of what was a truthful stalement and what was a lie, and did not seem 10 understand why i( was important to tell the truth rather (han a lie. I appreciate this is not an easy concept, but it is a significant one.

So 1 suppose another way of puning it was that it was indeed the case that I was satisfied that the witness did not have sufficient understanding of the concept. Whether i f I was left in - I won' t say doubt, because that's the

40 wrong expression - - -

MRTHOMAS: Yes.

I-US HONOUR: But if it was just not more probable or less probable that 45 the witness did, what would be the answer? I don ' t know that I've

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19

ACT.0013.002.0256_R


addressed that.

MR TI-IOMAS: But they're the issues, your Honour, yes. And so we say your Honour would need to see the video and would then nced to work

5 out - and one of the issues how one ascertains at the time of the interview whether the person was capable of being competent - was competent to give unsworn evidence. And that has to be a real issue because in the tight of - --

10 J-IlS HONOUR: Well, the interest ing thing is that every witness who gives evidence by way of a record of interview is giving unsworn evidence.

15

20

lvIR l H OMAS: The issue still arises though, your Honour, yes of course.

I-US HONOUR: Well, they may be per[ecl ly capable of giving sworn evidcnce and indeed it 's an error, as you know, for a witness who is presented in the court in the Ilonnal way to give unsworn evidence if they' re capable of giving sworn evidence.

MR THOMAS: Well, the authorities - and Brookes refers to that. Groves J decision in Brookes refers to that and that 's why I mentioned the decision of ... (indistinct) ...

25 HlS HONOUR: But it 's interesting because that is the process which is sanctioned by the legislation so that presumably takes it out of the category of exclusion.

30 MR THOMAS: Well , that may become an issue, yes.

HlS HONOUR: Well , I don 't know if it is but, in any event, It IS,

suppose obvious, but the statute of course takes precedence over any previous Common Law rule.

35 MR THOMAS: Yes Common Law rule, that's right. They are the issues, your Honour, so that's where it li es at this stage, your Honour.

40

HIS HONOUR: So, what's your suggestion? Should I view the - or should we all view it together? J don' t see - - -

MR THOMAS : I don' t sec any reason why not, your Honour. J would have thought that - subject to this, your I-Ionour: obviously, ir there's an efficient way in which the court can utilise it's time with some other mcthod, then I have no objection to that. For example, it may be possible,

fDA 11211212012 20 see 407/ 11

ACT.0013.002.0257_R

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5

ACT. 0013.002.0258

your Honour, and - can I come back to one other issue in relation to the pre· trial hearing, your Honour?

J-US HONOUR: Yes_

MR THOMAS: There is some real authority in the Court of Criminal Appeal in New South Wales on the issue of when a trial actua lly does start, even though there's a pre.arraignment type procedure in that jurisdiction and there's some statutory provisions which di ffe r to the

10 ACT; the issue has not been decided in thi s jurisdiction as far as I understand it as to whether an accused arraigned in that directions hearing stage, that early stage, is actually arraigned for the purpose of a trial. TIlere is an issue that arises here.

15 H1S HONOUR: Well , it used to be the situation Lhat the juri sd iction of the court was - not to make any ruling in respect o f a matter · was not enlivened unti l he was arraigned.

MR THOMAS: Precisely, your Honour. So that one issue that arises here 20 is - and I'm conscious of the fact that pre-trial heari ng is not defined in the

legislation or any legislation in this jurisdiction that I can ascertain.

rns HONOUR: I presume it has its natural and ordinary meaning.

25 MR THOMAS: Well , it may but the power of the court is also, in part, statutory in this area, in interlocutory proceedings.

J-Jl S HONOUR: Yes_

30 MR THOMAS: So the question does ari se as to whether this is, in the same way, a trial .... (indistinct) ... that.

HI S HONOUR: Right.

35 MR THOMAS: I mean, I would not necessari ly see any impediment to your Honour viewing video in an efficient way without hav ing to sit through 2.5 hours in video in COUrl, fo r example. But perhaps that raises that issue about whether the tri al has started, whether you can adjourn in that way, whether your Honour is entitled to view it in that way. But I

40 would have thought your Honour could bul as I say I haven' t considered it in depth.

45

lollS HONOUR: Well , Ms Tasneem, what do you suggest would be the best way o f proceeding?

~t 2/t2l20 t 2 ~7/11

2t

ACT.0013.002.0258_R

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5

10

15

ACT.0013.002.0259

MS TASNEEM: Your Honour. I accept, given the age of the complainant, that your Honour would need to be sati sfied about his capacity to give sworn evidence and the way I would have anti cipated proceeding today is once - - -

I-IlS HONOUR: Now, just to stop yOli there just to sec where we're at, you said, "To give sworn evidence."

MS TASNEEM: Well , first ly, - --

HIS J IONOUR: The young person is yet to give sworn evidence. This is unsworn evidence.

MS TASNEEM: Well, irJ could go back a step, your Honour?

HIS IIONOUR: Yes.

MS TASl\'CEM: In temlS of the evidence that he would give at the pretrial hearing today in add ition to his record ing your Honour would

20 probably want 10 be sat isfied, given his age. There is that presumption of competence generally.

HIS HONOUR: Yes.

25 MS TASl\T£EM: Then, your Honour, in tenns of the order of things that your Honour needs to be satisfied about, your Honour must firstly be satisfied he's competent 10 give sworn evidence and how that is defined --

30 HIS HONOUR: Well. if the witness is competenlto give sworn evidence then I don ' t think, given the statutory provisions, that there be any objection to the witness in accordance with the statute giving pan of the evidence by way of a pre-hearing interview with police subject, of course, to the redaction question.

35 MS TASNEEM : Yes. So, - --

HJS HONOUR: Quite di (ferent as a concept.

40 MS TAS rEEM: So, if your Honour finds him to be competent to give sworn evidence today then - well, the authorities aren ' t clear. My friend has provided RA v The Queen. the New South Wales Court of Criminal Appeal decision. And at page 224 of that - --

L,.,~.,.,.J; 211212012 711 1

22

ACT.0013.002.0259_R

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5

ACT.OO13.002.0260

HIS HONOUR: Sorry, which one is that one? RA - there we are, number 4 on my list.

MS TASNEEM: At page 224 of McClellan CJ at Common Law, he states

illS HONOUR: Chief Judge actually.

MS TASNEEM: Chief Judge, I apologise, your Honour. At paragraph 10 commencing line 8 that his tentative view is that:

The competence of the witness is only required to be determined af the time (he person is called to give evidence.

IS And so that seems to be the indication of the authorities, your HonouT.

20

25

It 's nOI at the time of the interview with police but rather at thi s lime in the pre-trial hearing.

l-llS HONOUR: Well, as his Honour says, it 's a tentative view.

MR THOMAS: Your Honour, there is one fundamental issue in relation to that. The provisions in New South Wales do nol Slate that the evidence becomes evidence as if given orally in-chief by the witness at trial . That 's a substantive difference. And so here - --

HJ HONOUR: Well , what is the statutory provision?

MR THOMAS: The statutory provision provides that it may be there under the Youth Evidence Act. It simply provides lhat it may be played

30 and, your Honour, - _ .

HIS HONOUR: According to this the relevant statute is the Evidence (Children) Act 1996.

35 MR THOMAS: Yes. I thought I had a provision here somewhere, your Honour. Just pardon me a second. So, there is a fundamental difference between the statutory provisions however and the difference is that in our jurisdiction it' s deemed to become the evidence as if given orally at trial and I'll find that provision for you in a moment, your I-Ionour.

40 I hand up, your Honour, seclion 9, Evidence (Children) Act 1997. It no longer exists in New South WaJes, and Evidence (Chi ldren) Act 1997, section 15. There they arc quite different to the provisions under the Misce ll aneous Provisions Act in this jurisdiction because here we deem it

45 to become ev idence as if given in open court.

~211 2120 1 2 ~/II

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ACT.0013.002.0260_R

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5

ACT.0013.002.0261

I·IIS 1-10 OUR: 40(F) I suppose is the relevant one here:

"h may be played at the hearing of the proceeding and be admitted as the witness' ev idence- in-chief in the proceeding as if the wi tness gave the evidence at the hearing in person."

That's the one you' re referring to?

10 MR TI-IOMAS: That' s right, your Honour, yes.

15

I-IlS HONOUR: Yes.

MR THOMAS: They arc materially different to what is - --

I-oS HONOUR: Well , what the Olher act seems to do is take the concept of hearsay evidence and render admissible the evidence in the proceeding by re ference to the previous representation; that is, the hearsay evidence.

20 MR THOMAS: Yes.

25

30

HlS HONOUR: And the evidence is then given by means of the recording under the current legislation. )' m not sure what the status of that would then be, but I think our provision is much clearer.

MR THOMAS: That ' s right. And as I say - --

l·I1S HONOUR: That which is the product of the interview is, in itself, evidence if the relevant conditions are, of course, satisfied.

MR THOMAS: Prec isely. your Honour, yes.

HIS HONOUR: Yes. All right.

35 MS TASNEEM: Well , as your Honour has pointed out, the provision is there to allow for interviews with police to be tendered.

I-IlS HONOUR: Yes, quite.

40 MS TASNEEM: And so there apparently appears to be some tension. Ln tenns of that recording with poli ce there is no mechan ism for that to be sworn or unsworn.

OA 1211212012 24 see 407111

ACT.0013.002.0261_R


I-US HO OUR: No, it - you don't make a choice between sworn or unsworn there, that's right. It becomes evidence in the proceeding, albeit that it 's not sworn.

5 MS TASNEEM: Yes.

HIS HONOUR: All right. In other words, there's no objection to the evidence that it' s unsworn.

10 MS TASNEEM: No, your Honour. And so my submission is that the time [or assessing competence is at this stage, at the pre-trial hearing.

HlS HONOUR: Well, how can I do that?

IS MS TASNEEM: Ln terms of assessing his competence now?

HI S HONOUR: Yes.

MS TASNEEM: By asking the usual questions and determining ifhe has 20 the capacity to understand the obligation to tell the truth.

lollS HONOUR: How does lhat relate, then, to the interview with police?

MS TASNEEM: The enquiry your Honour would be engaging in today? 25

HIS HONOUR: Yes.

MS TASNEEM: Yes. Well - - -

30 HJS HONOUR: I mean, I Lhink myself that if it is evidence, it is evidence as ifil was given in a courtroom.

MS TASNEEM: Yes.

35 H1S HONOUR: And there's an obvious difference in that it is given - in this case it is on 14 August 20 II , not now.

MS TASNEEM: Yes. Well, the difficulty then would be - is your Honour then saying that, by virtue of that evidence, or that interview

40 being taken he must - - -

HIS HONOUR: Have been competent to give ev idence at that time. Now, there's then a question of what do you mean by that? Do you mean swom evidence or unsworn evidence? And of course is the answer is you

45 mean - if you assume you mean sworn evidence and you answer that

fDA ~ 211212012 25 see 40711 I

ACT.0013.002.0262_R


question affirmat ively, the witness was competent, then of course it doesn' t matter whether or not they were competent to give unsworn evidence.

5 You may need to make that further enquiry if you come to the view that the witness was not then capable of giving sworn evidence, and of course as it wasn ' t sworn and no enquiry was made about it being sworn it 's very diffi cult to determine that, I would think. You can' t do it directly. in other words. It would be indirect.

10 MS TASNEEM: No. And in terms of the consequences for whatever further evidence the complainant gives today, is your Honour then saying that the absence of a mechanism for obtaining sworn or unsworn evidence at the interview stage necessari ly means the complainant cannOI be

15 competent to gi ve - - -

20

25

HIS HONOUR: No, no.

MS TASNEEM: No?

HIS HONOUR: No, certainly not. I mean, if llle witness were now sworn to give evidence and proceeded to give that evidence, then the enquiry is now as to whether the witness is now competent to give sworn or, if not that, then unsworn evidence.

MS TASNEEM: Yes.

HIS HONOUR: So that's, if you like, the Cooper test. But clearly that doesn' t answer any questions that might be raised, if there are any. about

30 the original interview with police. I mean, ordinarily it doesn' t matter because the police interview is not somelhing that's ever tendered in evidence.

35 MS TASNEEM: No.

1-I1S HONOUR: 1t 's only in the particular circumstances of this kind of case that that question arises.

MS TASNEEM: Would there be, though, any inherent conflict in the 40 interview being accepted as unsworn evidence and any further evidence

given today, if the tests arc passed, being accepted as sworn evidence? Can there be - well , by virtue of that a year has passed, your Honour - --

I-I]S HONOUR: Well , this whole procedure is somewhat artificial in any 45 event, so one accepts that necessary artificiality. I suppose there would be

fDA 1121 12/2012 26 see 407/11

ACT.0013.002.0263_R


- if a witness, for example, could give evidence about a statemenl made to police by saying, "Yes, I made thi s statement to pol ice and it's true and correcl, everything I said there is to the best of my knowledge and ability true and corrccl," i f that were able to become evidence then of course you

5 wouldn 't need to enquire into the competence afthe witness at the time of the interview, because that wou ld be evidence now, not evidence then.

MS TASNEEM: An adoption.

10 I-rlS HONOUR: Yes, an adoption of it, assuming that it was - you know, that there was some lack of competence at that time, which is a different question. And I certainly have no material at the moment to say one way or the other, other than, of course. viewing the interview itself.

15 MS TASNEEM: Yes.

H1S HONOUR: And assessing the demeanour of the person, thei r response to questions and answers. I mean, for example, if you took the fi rst few questions and answers there doesn't seem to be anything there

20 that would indicate any lack of appreciation of - --

MS TASNEEM: No.

H1S HONOUR: - - - the ability to - or appreciation of the obl igation or 25 ability to tell that which is the truth.

30

MS TASNEEM: Well , perhaps then, your Honour. the only way to proceed would to be allow - to a llow your Honour some lime to view at least a portion orthe recording.

I-US HONOUR: Yes. It may not be necessary to view the lot.

MS TASNEEM: Yes.

35 I·US HONOUR: I mean, I would have thought it was probably only necessary to view a reasonably substantial portion of it and then fonn a view about the responsiveness of the witness. whether the witness responds reasonably, adequate ly and apparent ly truthfully, and if so then it would seem to me that it probably answers the question. Any comment,

40 Mr "nlOmas?

MJ{ THOMAS: Well, yes, there are some comments, your Honour.

I-li S HONOUR: Yes. 45

fDA h2l12l2012 27 see 40711 I

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5

10

ACT.0013.002.0265

MR THOMAS: And I understand what your Honour's just put. If I can go back to a couple of things; firstly the legislation, and this particular legislation, does not contemplate that a police record of interview is admissible. Quite clearly it contemplates that it may not be admissible.

HlS HONOUR: Well, it contemplates that it is admissible. It contemplates that it may not be admitted.

MR THOMAS: That 's right.

HIS HONOUR: That's in whole or in part.

MR THOMAS: Yes. So what l'm simply saying is that the situation is that the Crown may elect, for example, not to proceed on the basis of

15 tendering it. 400 may not be acLivated, for example.

HIS HONOUR: I suppose so. r haven't - I may need to just look at that quickly to sec whether they have an option.

20 MR THOMAS: Well , thal's what I meaning to put to your Honour really, is that it is an option, because section 40 has to be an election by the Crown to proceed on that basis.

HIS HONOUR: Let me see. Okay. 25

MR THOMAS: I'm sorry, your Honour, does your Honour - --

HIS HONOUR: It 's a bit complicated. There's three acts involved.

30 MR THOMAS: Yes, I know.

HIS HONOUR: One's repealed.

MR THOMAS: I' ve got the completed - --35

HIS HONOLJR: Well, so have I, but - --

MR THOMAS: Your Honour.

40 HIS HONOLJR: Okay.

MR THOMAS: Section 40G.

HJ.S HONOUR: Yes, well , the prosecutor may, of course, choose not to 45 tender an audiovisual recording as evidence.

fOA 112/ 1212012 28 see 40711 1

ACT.0013.002.0265_R


MR THOMAS: Yes.

HIS HONOUR: If so, then the witness would g ive evidence from a 5 remole place.

MR n ·rOMAS: Yes, we move from that step to the - and your Honour, that' s important - --

10 rus HONOUR: Yes, and it must be so unless there's some good reason not to.

MR THOMAS: And that's important, your Honour, because what we say is that if the parties conducting the interview had regard to the provisions

J 5 of the legislation, then Q&A 8 would have been much more expansive and would have provided your Honour with materi al \.vhich would enable your Honour to determine whether the complainant at that time was competent to give sworn or unsworn evidence.

20 So that the problem is, and Iha1" s why the authorities arc important, your Honour has only limited evidence before you in relation to that matter. But the thrust of Brookes and the High Court decis ion of Kirk is that your Honour is required - and in Brookes your Honour wi ll remember that the court proceeded on the basis that the child was 12 years old when, in fact,

25 it turned out the child was I O. Even though at that stage the court of criminal appeal was sati sfied that the child probably was competent, the fact that the court had not undertaken the exercise and had proceeded on the basis that she was 12 when she, in fact, was 10 meant that there was a fundamental error in the proceedings in the proceedings were set as ide.

30 So that your Honour is required to address the evidence, and r don't mean that in a pejorative sense, obviously your Honour understands that but I'm just stepping it out. And that test is enlivened contrary to the decision of Chief Judge at Common Law Mr McClellan, because the Act here are

35 quite precisely says that the evidence becomes the evidence as if given at tri al, and we have been through thal.

So that your Honour is required, because of the words of Grove J in RA, there is only two categories of evidence admitted, sworn or unsworn. rr

40 one doesn't fall within either of those categories, and in th is case would not fall within that category because no decision had been made in relation to that earlier decision, then there would become a fundamental error in the trial.

45 So your Honour, as a result of the High Court - and I can take your

~211 21201 2 Scc407111

29

ACT.0013.002.0266_R


Honour to the other aspects of Kirk where the court sets out at length the problem that arose there and why it was a jurisdictional error. Your Honour will remember that the New South Wales Industrial Commission failed to require particulars of offences under section 15 and 16 of the

5 Occupational Health and Safety Act, proceeding on the basis that those sections visited strict liability on people. The High Court said that was a jurisdictional error and the matter fell.

And I can take your Honour to those sections in Kirk if necessary in 10 relation to it. But what we say here is that unless your Honour can come

to a conclusion as to admissibility on the evidence - - -

HIS HONOUR: Of the evidence.

15 MR TIIOMAS: Yes, then that audiovisual recording is simply inadmissible. And it's inadmissible because the persons who conducted the interview did not provide your Honour with sufficient evidence, we would say. because or the way in which they conducted it, to enable your Honour to detennine the issue of competency. And your Honour, we

20 would say quite clearly that - - -

HIS HONOUR: It mayor may not be.

MR THOMAS: - - - Q&A 8 is totally insufficient 10 provide your Honour 25 with an evidentiary basis - - -

HIS HONOUR: By itself, possibly so but - - -

MR THOMAS: Yes, 1 understand what your Honour has put about 30 looking at - - -

HIS HONOUR: One would have to look at it and - - -

MR THOMAS: Yes, I accept that, your Honour. 1 accept that. And I'm 35 putting it in that way, your Honour, as your Honour - - -

I-US HONOUR: And by that I mean sufficient of it anyway to get an . . ImpressIon - - -

40 MR THOMAS: Yes, but your Honour understands what 1'm putling in relation to it.

4S

I-lIS HONOUR: - - - of whether the evidence was understanding and accepting an obligation to tell the truth and was capable of so doing.

fDA ,2112120 12 30 see 407/11

ACT.0013.002.0267_R


MR THOMAS: l 11at'5 righl. And then your Honour needs to deal with the conundrum of how the witness prior to giving that evidence was appraised within the matters set Qut in subsection (5) of 13. Because that in the authorities are clear is a fundamental precursor to the person being

5 allowed to give an sworn evidence. And that is a fundamenta l precursor which is not excluded by this act but, in fact, becomes part of the act by virtue of the provisions l' ve taken your Honour to.

So that without that being drawn to his attention, there is simply a lacuna 10 which can't be rectified. And that is spelt out in the decision of Kirk v The

Industrial Relations Commission 0/ New Soulh Wales. And it's identifi ed very clearly in that decision is ajurisdictional error.

HIS HONOUR: Well , I mean, there are two aspec,s to that. One is 13(3) 15 of the Evidence .ACL 20 I I which refers to capacity to understand that in

giving evidence the person is under an obligation to give truthful ev idence. Obligation obviously isn't confined to being subject to criminal sanctions if you fai l - - -

20 MR THOMAS: That's right. And they are the - --

25

HIS HONOUR: - - - or do not - I mean, that's obviously so because othenvise a person under 10 could never g ive competent evidence. r hat is not---

MR THOMAS: The conundrum, your Honour posed in Cooper is still there, yes.

HIS HONOUR: No, no, that's rigbt, and that's onJy an aspect of it. So it's 30 not precluded. But if the witness is not competent to give sworn evidence

about a fact , than the enquiry is, if the witness competent to g ive unswom evidence about the fact? And subsection (5) addresses that and - - -

35

40

MR THOMAS: That's right.

HI S HONOUR: - - - the pecson is competent if (a), (b) and (c) are satisfied.

MR THOMAS: That's right, yes.

I~U S HO OUR: And it seems we can reasonably say - - -

MR THOMAS: (a), (b) and (c) - --

45 HIS HONOUR : - - - that (a), (b) and (c) are satisfied in - really, but not

[CDA 1121 12120 12 31 SCC40711 1

ACT.0013.002.0268_R

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5

ACT.OO13.002.0269

just as a matter of ritual.

MR THOMAS: That's right, your Honour, and it is the court has told the person that.

HIS HONOUR: Yes, of course. And it seems to mc if the court rec ites those obligations to the person. that doesn't answer the question unless the witness seems to understand and accept th-ose three matters.

to MR THOMAS : That's the position we have put, your Honour, yes.

15

IDS HONOUR: But there is a presumption, of course, in favour of competency and that presumption applies both to sworn evidence and unsworn evidence.

MR THOMAS: Yes, quite clearly, your Honour, and that is once aga in contrary or different to the Common Law. But the thrust in relation 10 that presumption, your I-I onour, the words of Grove J in Brookes and the decision itself is important in the light of those are the decisions which all

20 talk about fundamental errors where the court hasn't - - -

[-US HONOUR: Yes, yes, you've got to be - - -

MR THOMAS: So - yes_ 25

1-11S HONOUR: - - - meticulous about that.

MR THOMAS : That's right, your Honour, yes.

30 HIS HONOUR: And one does recognise that this is an exception to the general rule of fairness which use that evidence should be given in court and in front of the person accused.

35 MR THOMAS: Yes, that other issue - --

HlS HONOUR: And tl,ere is an exccption(?) from that

MR THOMAS : Yes, that other issue I haven't addressed but your Honour understands our position in relation to that. And that - when your Honour

40 views the record, it may then become another issue under 137 and I understand that and that's part of it. But the primary issue is the one that your Honour and I have been discuss ing.

H1 S I-IONOUR: All right Well , what would be the - --45

fDA 112/121201 2 32 sec 407/1 I

ACT.0013.002.0269_R


MR THOMAS; I note the time, your Honour.

HIS HONOUR: . - - time? So do l. So why don't] proceed now by taking the morning adjoununent, obviously enough, but also 1 will view

5 this record as recorded and suffic ient for me to be able to form a view about whether the presumption is displaced or not.

MS TASNEEM: As the court pleases.

10 MR TIIOMAS: The court pleases.

15

ffIS HONOUR: That is, ei ther presumption.

MR THOMAS: Yes, yes, I understood that, your Honour.

HIS HONOUR: But really, I don't know that one has to go so far as to find the witness is capable of giving sworn evidence when the evidence plain ly isn'l sworn.

20 MR THOMAS; Your Honour, it would be rather a strange proposition that, as your Honour - this young child, sworn evidence in that situation.

HJS HONOUR: Yes, when there is no oath or affirmation at all .

25 MR THOMAS: We ll , yes.

30

35

40

I-IlS HONOUR: 1 think the section 13 does cover that. If one were satisfied that the witness was, though 6, is capable of giving sworn evidence, then that answers the other question.

MR THOMAS: The court pleases.

HIS HONOUR: All right. I shall do that then.

ADJOURNED [11.14 ami

RESUMED [12.16 pml

HIS HONOUR: Okay well I' ve viewed, I think, sufticienllo that. It does - and I appreciate this is a matter of impression it 's about as far as one can go at thi s point· but it does not seem to me that the witness demonstrates

45 any incompetence to give an account of that which he is relaying.

"~D"A--' 2112/20 12 c,.,..,..-;r."'11 I

33

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ggggggggACT. 0013.002.0271

MR THOMAS: If the court pleases.

HIS HONOUR: T mean there are some th ings in there which frankly I 5 think are irrelevant. That 's the difficulty with this kind of interview, of

course. I mean the police obviously want to put the witness at his ease and they go into a lot of th ings that strictly speaking you wouldn' t go "there if you were giv ing evidence airectly. For example, questions and answers about the games that he was playing on his birthday.

\0 MR THOMAS: Sorry quest ion and answer, sorry?

I-I1S HONOUR: 15, ct cetera.

15 MR THOMAS: Yes, I think Auld LJ describes them as "pleasantries."

HI S HONOUR: Well , indeed they are and as I say I understand why that would be engaged in to put the witness at his ease so that he does disclose to the police that which he can remember. But subjecllo that 1 don ' t have

20 any reason to be concerned about his capacity to relay factua lly what it is that he's talking about.

25

30

MR THOMAS: And then your Honour needs to deal with that issue under section 13(5) - - -

HIS HONOUR: Ves section 13(5).

MR THOMAS: . - • in re lation to the record of interview, rather than the evidence today which is different.

HIS HONOUR: Just run that one past me again ':different Loday" what?

MR THOMAS: In relation to the record of interv iew your Honour.

35 H1S HONOUR: Ves, yes sure.

MR THOMAS: That's the first bit, yes.

HIS HONOUR: Yes that ' s ali i was referring to there obviously. 40

MR THOMAS: Ves precisely.

I-US HONOUR: Yes so, Ms Tasneern, what are you now doing?

45 MS TASNEEM: Well, your Honour, then that leaves the issue about if

fDA 112/ 12/2012 34 see 40711 1

ACT.0013.002.0271_R


your Honour has found the complainant to be competen t, in tcmlS of whether the recording is to be played today or can be tendered and what to do about the proposed redactions.

5 HJS HONOUR: Well what to do about the proposed redactions you' re agreed on those.

10

MR THOMAS: Yes, your Honour. I think your Honour just formally needs to make an order.

HIS HONOUR: Indeed, so I will make that order that those matters which you are agreed should be redacted may be edited from the recording to be tendered.

15 MS TASNEEM: Your Honour, just for c larity I would confU111 that those parts are question and answer 218 to 220 inclusive. Question and answer 266 to 312 inclusive.

H1S HONOUR: Yes that 's right, isn't it? 20

MS TASNEEM: If the court pleases.

MR THOMAS: Yes, your Honour, yes.

25 HIS HONOUR: All righ1, yes done.

MS TASNEEM: Yes then the question the Crown's app lication would sti ll be that the recording not be played today. It would be tendered and then I would simply call the complainant now and ask some additional

30 questions.

filS HONOUR: All right any difficulty with that course?

MR THOMAS; No, except your Honour needs to determine whether 35 today he is competent.

HlS HONOUR: Yes well that 's part or the examination which Ms Tasneem will conduct.

40 MR THOMAS: Yes, yes I understand that. I don ' t think - - -

HIS HONOUR: That's in two parts. One is as Lo the giving of - I mean in a previous case it was agreed that the wi tness was not competent to g ive swom evidence. And the issue was whether the witness was competent to

45 give unsworn evidence.

0' 211212012 35 see 407/11

ACT.0013.002.0272_R

ggggggggACT .OO 13.002.0273

MR THOMAS: Yes, no I understand that.

HlS HONOUR: Now is there any agreement here about the first 5 question?

MR THOMAS : He's not competent in our view to give sworn evidence, but---

10 IDS HONOUR: I mean is that agreed that 's what I'm asking?

15

20

MR THOMAS: No that's exactl y right, your Honour, yes.

I·US HONOUR: Sorry?

MR THOMAS: It 's not agreed, no that's a li i was saying.

I-IlS HONOUR: All right, okay. [n that case let's proceed with the calling of the complainant.

MS TASl\TEEM: Yes, your Honour. Before that happens, your Ho nour, in teons of this be ing a proceeding if I can confirm whether the accused would need to be arraigned before we commence any funher?

25 J-I]S HONOUR: Has he not been arraigned? He would ord inarily have been arraigned well and truly before this, I would have thought.

MR THOMAS: That's the point I made before, your Honour, yes.

30 HlS HONOUR: Is it, okay? Well if he hasn' t been arraigned he should be. His arraignment on 5 June. What happened? Four counts the accused pleads not guilty.

35 MS TASNEEM: I see. TIlen the other - --

rus HONOUR: And anything else I would have thought that was an arraigruncnl.

MS TASNEEM: The only other preliminary issue then, your Honour, is 40 that during the course of a pre-trial hearing the court needs to be closed,

subject to cen a in prescribed persons being allowed to be present.

45

I-IJS HONOUR: Yes well I note there are not many people present. Are any of those persons prescribed persons?

~2f1 2l20 1 2 Scc4071J I

36

ACT.0013.002.0273_R


MR THOMAS: No. your Honour, they' re not prescribed persons.

H]S HONOUR: All right. Vacate those persons who are not, as we say, prescribed persons from the court and the hearing of the court while this

5 evidence is presented. J know persons who may be present include sheriff's officers and/or corrections officers and at the moment there's only one corrections officer present. All right, but we have a sheriIrs officer though. I ' m just making the point that sheriff's officer or officers andlor correction officer or officers may be present. Yes and my

10 associate. All right well the court technology officer is apparently going to come and try and make the technology work.

MS TASNEEM: I sec. Perhaps I could take advantage of that lime then, your Honour, to just raise onc other issue. In the normal course of a court

15 being satisfied or otherwise of a witness's competence and certainly when they' re children certain Questions are asked about, for example, school ing and grades sometimes the only issue I would raise is that I understand the complainant has changed schools. And out of the interests of anonymity his parents have requested that he not be asked which school he attends.

20

25

HIS HONOUR: Well anything that might tend to ident ify the young persOIl is, of course, certainly 110tto be published and there's no part icular reason why the identity of the school would be relevant 1 would have thought.

MS TASNEEM: No, your I-I onour, and my raising of that issue refers to who would be apprised of that information in court, not so much about the non-publ ication.

30 f-IlS HONOUR: "m not quile sure what you mean by that? I mean obvious ly the person's present, you can see them.

MS TASNEEM: Yes, but if the question were to be asked "Which school do you attend?" and thi s court would be infonned of that and the concern

35 of the parents is that the accused would then know where the schoo l is.

40

That is essentially the problem.

I-US HONOUR: I see. Well I don't see any reason why the complainant needs to be asked what school he attends unless you make it re levant.

MS TASNEEM: I just wanted \0 - --

I-US J-JONOUR: Mr Thomas, do you have any issue about - - -

45 MR TJ-JOMAS: No, your Honour_

fDA p2l12l20 12 37 SCC407111

ACT.0013.002.0274_R


H]S HONOUR: A ll right there's no issue about that.

MS TASNEEM: All right thank you, your Honour_ 5

I-US HONOUR: Right that's all?

MS TAS NEEM: Yes, your Honour_

10 HIS HONOUR: Okay in that case we await the technology person.

15

20

Where is she? How soon will she be here? All right well the technology offi cer apparently is on her way, but will take quite a few minutes to arrive, at least five minutes. So I'll take a short adjournment and we'll resume as soon as we're able to do that.

ADJOURNED ]12.26 pm]

RESUMED ]12.34 pm]

HIS HONOUR: T think we're rcady to resume.

25 MS TASNEEM: Yes, your Honour.

.. OS HONOUR: I' ll note the technology officer is now present and is an authorised person. Now, Ms Tasneem.

30 MS TASNEEM: Yes, your Honour. Would it now be where your Honour would be assessing competence or - - -

1-IlS HONOUR: Yes.

35 ~OE ~ can you hear me?

f OE I Yes.

H1S HONOUR: And do you know what 1 am? 40

t OE I Yes.

H1 S HONOUR: What am I?

45 ~OE I A judge.

fDA ~ 2/1 2/20 I 2 38 see 407/11

ACT.0013.002.0275_R

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25

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35

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45

ACT.0013.002.0276

HlS HONOUR: Very good. Can you see, Ms Tasnccm? She is the lady who just stood up?

0' Yes.

I-ns HONOUR: And do you know what her role is?

'0' I No L[ ____ -----1 •

I-I]S HONOUR: She's what we call the prosecutor. What do you understand that to mean?

'f OE I L _______ ----'~ Yes.

HIS HONOUR: Well, she appears to present the case which relates to that which you told the police about last year, Do you remember speaking to the pol ice last year?

0' Y '-_____ -----' es_

I-ns HONOUR: And you made statements concerning ""'"' _____ --" Do you remember making statements that concerned him?

0' Yes.

!-IJS )-10 OUR: Now, what J have 10 ask you is some questions about the giving of evidence in this case. First of all do you know what sworn evidence is?

fLO_' _____ --"1 No.

HJS HONOUR: Do you know what the Bible is?

CLO_' ____ -----'f Yes.

I-IJ S HONOUR: And what is tl,e Bible?

Lf O_' _____ -----'1 The Bible is a book that tells you about the Lord.

l-US HONOUR: Yes. And what is your understanding of - you used the lenn, "the Lord," what is your understanding of that?

tLO_' _____ -----' I don 't know.

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ACT.0013.002.0276_R

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ACT.0013.002.0277

I-OS 1-1 0 OUR: Okay_ Now, do you have any religious belief yourselr? Do you attend church?

Lf D_E ____ -----'1 Yes.

HIS HONOUR: And which church do you attend? J don' t mean the name of the church but what religion?

CD' I can ' t remember.

HIS HONOUR: And, OA if you - sorT)', not ~ ~ if you were to tell , say. promise to God that you would tCrrthel~ would you understand that you would be doing?

DE I don' t know.

H]S HONOUR: Don'( know, okay. So, just to put it another way. if you were to promise to tell the truth and promise to God to tell the truth, what do you think would happen if you did not tell the truth?

LD_E ______ --" The next day I would have a bad day_

HIS HONOUR: Sony, you what?

Lf D_E _____ ---'f The next day I would have a bad day.

HIS HONOUR: The next day you'd have a bad day.

I think, counsel, I now have to go to subsection (5).

MR THOMAS: ilhink that 's right, your Honour.

HIS 1--10 'OUR: Well, De we' ll come to another question then. You reaJise you're going to be asked some questions today about what

35 happened last year. Is that right? Is that your understanding?

DE Y '--______ .J es, yes.

HIS I-IONOUR: Now, do you understand that it is importanllhal you tell 40 the truth about what happened?

fL D_E ____ ---'i Yes.

HIS HONOUR: And what do you understand by the term, "Tell the 45 truth," what would you understand that to mean?

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ACT.0013.002.0277_R


I don' t know.

HJS HONOUR: You don 't know, okay. Well, if I said to you that telling 5 the truth was saying what happened but not saying that something did

happen ifit didn 't, what would you say to that?

Lf"_' _____ ---"i Maybe I tell the truth or not.

to I-nS HONOUR: Now, if you were being asked questions and you didn't know the answer to the question what should you do?

Lf_D' ______ -'1 Say, " r don ' t know."

15 HlS HONOUR: Right, and if you think you should know but you just can't remember at the moment what should you do?

f OE ~ " I can' l remember." '------'

20 J-US HONOUR: And, of course, that would mean that you would tell the court if you couldn't remember something or if you do not know the answer to the question. Is that right?

25

30

35

40

45

fLD_' ____ ~1 Yes.

illS HONOUR: Now, you may be asked questions which invite you or ask you to say whether what has been put in the queslion is true or untrue. Like, is it true that you went to school yesterday?

Lf D_' ____ -----'1 Yes.

HIS HONOUR: So, you' re answer would be "Yes" if you did, right?

t OE I And, "No" ifl didn ' t. '--------'

HIS HONOUR: And no if you didn ' t and if you couldn' t remember whether you went to school or not what would you say?

iCOE ~ " I can' t remember." '---------'

HIS HONOUR: Exactly. And if it was suggested to you by someone, "Look, you didn' t really go to school yesterday, did you," what would you say to that?

" I was lying."

f DA Pll2/20 12 41 see 407111

ACT.0013.002.0278_R

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5

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ACT.0013.002.0279

HIS HONOUR: Well , now, if somebody said to you, "Look, you didn't go 10 school yesterday," and you knew you did what would you say?

L O_ ' ______ -' "I did go to school yesterday,"

HJS HONOUR: Now, if someone puts to you something that you don't agree with you don't have to agree with them just because they put that to you. Do you understand that?

LEO_' _____ I Yes.

HIS I-IONOUR: Okay. And you think you could do that do you? Like, if somebody said to you, as I just used the example there, "Look, you didn't

15 really go to school yesterday, did you," wld you know you did what would you say?

0' I don't know.

20 HIS HONOUR: You don't know, all right.

25

Any questions you want to have asked?

MR TI-IOMAS: 0 , your I-I onour.

HIS HONOUR: Ms Tasneem?

MS TASNEEM: Your Honour, perhaps l should have raised this before your Honour went to subsection (5) but could any questions be asked

30 about promises to tell the truth of court, rather than in lenns of promises to the Lord?

I-llS HONOUR: That's not part of the section.

35 MR THOMAS: 0 , no.

MS TASNEEM: Of subsection (4) in terms of ob ligat ion La tell the truth. It's an example.

40 H.IS HONOUR: Yes, that 's subject to subsection (5) though.

MS TASNEEM: Yes, but, subsection (3) where your Honour's made - --

MR THOMAS: Perhaps it should be in the absence of the witness then] 45 your Honour.

OA 21 1212012 42 see 407/ 11

ACT.0013.002.0279_R

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5

ACT.0013.002.0280

HlS HONOUR: Yes.

Can we just tum the witness off for the moment?

We' ll come back to you in a moment. fLD_E_----1~ okay? The screen wi ll go blank for a little while.

MS TASNEEM: Your Honour's questions where they pertained (0

10 subsection (3) asked about, "You understand making a promise to the Lord to te ll the truth," and understanding what the Bible was.

15

I-DS HONOUR: Yes. We didn ' t have - I was not ab le to elicit an understanding arthat.

MS TAS1\'EEM: Well , your Honour, perhaps asking the witness about what he understands the law to be would be a little difficult. J was wondering whether questions about the court itself.

20 H1S HONOUR: Ms Tasneem, I am sure it is a very difficult question for a lot of people.

MS TASNEEM: Yes.

25 I-ITS HONOUR: J understand that, but in any event it's a question of whether a promise enforced by swearing on the Bible or whatever other sacred book is appropriate would lead the witness to believe that there is an obl igation to tell the truth. That 's the whole purpose of the oath. of course.

30

35

MS TASNEEM: And he was asked what would happen ifhe didn' t keep that promise, and - bad day.

HIS HONOUR: Yes. He'd have a bad day the next day.

MS TASNEEM: Well , given his age that could infer that he knows there would be negative consequences.

HJS HONOUR: Yes, he agreed there would be a negative consequence 40 although it doesn' t - it wasn't one from which 1 could infer that he would

feel an obligation. So I think we can't be sati sfi ed about subsection (3). Subsection (5) is of course a different issue and there 1 have some difficulty finding out from him - I mean we can tell him it is importan t to tell the truth, but whether he wlderstands that is - - -

45

~2/ 1 212012 'scc407Il 1

43

ACT.0013.002.0280_R


MR THOMAS: Well , he clearly doesn' t your Honour, with respect.

HIS HONOUR: Well, we' ll come back to thaI.

5 MS TASNEEM: Well, your I-Ionour, thi s discussion was already raised this morning about whether the provision itself actually requires comprehension. It is just infoming the witness. There is no additional criteria thai the witness be told and comprehend.

10 I·US HONOUR: Well, that ' s j ust silly isn't it? What's the point of telling someone something if they don't comprehend it? I' ll give you a good example of that, and it is one which has been dealt with in courts of appeal and it is a reason why procedures have changed.

15 Il used to be enough to say, ''Now you understand, accused, that you don 't have to say anything, but whatever you do say may be taken and given in ev idence. Do you understand that?" And the witness says, "Yes." The next question is, "What do you understand by that," these days because there have been plenty of cases where the witness has sa id that, but not

20 understood it. And of course you must have an understanding of the warning in order for the warning to be effective.

And it is the same here. J mean, the witness might be told that it is important to tell the truth but if the witness doesn' t know what on earth

25 you mean by that; how does it help you. It doesn't help the court.

MS TASNEEM: Well , perhaps then some questions in terms of why it might be important to tell the truth .

30 HIS HONOUR: Yes, of course, that' s what you 'd ask.

MS TASNEEM : Yes, so perhaps some additional questions in that vein.

HlS HONOUR: Well, I wi ll ask some add itional questions then about that 35 aspect of it. Right, can we have the witness back?

MR THOMAS: Your Honour, that docs presuppose that he understands that it is importan t to tell it in the first place.

40 I·US HONOUR: No, but tl,at's what the enquiry would be directed 10.

MR THOMAS: Yes, thank you, your Honour.

1·IlS HONOUR: 45 me.

OA

cC' 12112120 12 7/ 11

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44

ACT.0013.002.0281_R


fOE Yes.

HIS HO OUR: Great. All right. Now, 1 said to you earlier that you 5 understand that you are here to be asked some questions and do you

understand - and I have to tell you that it is important to tell the truth in answer to any question you are asked.

10

15

Lf'_' _____ I: Yes.

HIS HONOUR: Now, no doubt you hear what I have said, and the question then is what do you understand by what I have said?

Lf_OE ____ ----!1 Yes.

HIS HONOUR: What do you understand?

Lf_OE _____ ~1 1 understand that ... (inaudible) ...

20 HIS HONOUR: Sorry, cou ld you speak up a little because we're having a little diflicuJty hearing you.

25

30

35

40

45

fOE Okay. i understand most of the stuff that you were say ing.

HIS HONOUR: Yes, well what I am asking you iCDE ~s. what do you understand by me telling you that it is importanrto t'eIrl e truth. What does that mean to you?

LiC'_' _____ ---'11 don't know.

MR THOMAS : That has to be an end - - -

HIS HONOUR: 1 appreciate that. All right.

Okay, well thank you Lf_OE_~~ We'll just terminate the transmission at this point.

Thank you, the transmission can be tenninated.

MR THOMAS : Well, clearly, you Honour, In those answers he just doesn't satisfy the minimal test.

H1S HONOUR: Well , certainly not today.

fOA iI 2II2!201 2 45 see 407111

ACT.0013.002.0282_R


MR THOMAS: I don ' t di sagree wilh what's implied in what your HonouT sa id, but at the moment that's the position. l-Ie's clearly - he's not competent to give evidence.

5 l-[JS HONOUR: Well , 1 think that leaves you, Ms Tasnccm, in a situation where the record of interview is admissible but evidence about it from the wi tness is not.

MS TAS EEM; Is your Honour fomlally finding him to be incompetent 10 to give unswom evidence?

I-US HONOUR: Yes, yes, on the basis of the answers given.

MS TASNEEM: On the basis that when he was asked, " What do you 15 unde"tand when I tell you it is important to tell the truth?"

HIS HONOUR: He said, " 1 don ' t know."

MS TAS EEM: He said, " I don 't know." Your Honour, could he not be 20 asked why would it be imponrull to tell the truth rather than try ing to

explain a concept of the importance of telling the truth? Giv ing a concrete example such as - - -

25

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35

40

45

1-US HONOUR: Well, we don ' t want to lead the witness, that' s the point.

MR THOMAS : Your Honour has gone as far as it is possible.

I-US HONOUR: Well, don' t interrupt Mr Thomas.

MS TASN"EEM: Given his age, your Honour, I appreciate questions such as this do seem quite esoteric in tenns of the concept of truth and promises, but sometimes when examples are given if your Honour was to say, am I wearing a red tie or a blue tie those sorts of things might - red, I understand, on thi s occasion your Honour, it may assist a seven year old boy in terms of examples which he can give tangible answers to and understand.

1-US HONOUR: I don' t know. It is very difficult. I mean, f apprec~ate it could be the occasion and there may be other reasons why OE 's not able to give what I would think would be a satisfactory answer to the questions asked so that you could be sure that the - at least as sure as you need to be which is not beyond reasonable doubL, of course, only on the balance of probabilities that the test in subsection (v) is satisfied and you can only go on what the witness has said.

2112120 12 ~:c4IT7.11 I

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ACT.OO13.002.0284

MR THOMAS: And unfortunately, your Honour, you can 't get past, "What does it mean?" " 1 don' t know."

I·DS HONOUR: Well , thank you, Mr Thomas. I did hear it.

MR THOMAS: Yes, thank you, your Honour.

MS TASNEEM: If that is your Honour's ru ling then the evidence-inchief interview with police, the interview recording can be admitted under

10 the Miscellaneous Provisions Act.

15

HIS HONOUR: It is admissible evidence, yes.

MS TASNEEM: The addition - - -

HIS HONOUR: Well , hav ing seen it, at least not in its entirety but certain ly a large percentage of it, I think at the time the witness was capable of recounting what in his memory occurred.

20 MS TASNEEM: Well, the Crown would be relying on that as his evidence-in-chief. What additional questions I had today are largely immaterial therefore there would be no further examination-in-chief by the Crown.

25 IDS HONOUR: Yes. I am not sure though where that leaves the next question which is, where does that leave the cross-examination?

MS TASNEEM : Yes, your Honour.

30 HI HONOUR: All right, weillhank you very much.

MS TASNEEM: Thank you, your Honour.

HIS HONOUR: Well , do we need lO take lhat any further today? 35

MR THOMAS: 1 did miss what your Honour said.

HlS HONOUR: Do we need to take it any further today is the question.

40 MR THOMAS: I missed tbe bit before that your Honour, sorry.

HIS HONOUR: Well, I said that leaves open the question of what about cross-examination.

45 MR THOMAS : Yes. The answer to that is no, your Honour, because

fDA 11211212012 47 see 40711 1

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ACT.OO13.002.0 285

quite clearly there is nothing to cross-examine on.

1-IlS HONOUR: There is the police interview and that which is said there. That's all right, if you don't - --

MR THOMAS: The difficulty with that is your Honour, is the logica l difficulty under the legislation.

HlS HONOUR: Well - - -

MR ll-IOMAS: Yes, precisely.

HIS HONOUR: The legis lation does make things very difficult.

15 MR THOMAS: And the solution with - - -

HIS HONOUR: And indeed, J mean there arc cases you know where what is evidence of the aJJeged act is what a young chi ld says, rather than going into any question of whether it is evidence of the truth of what is

20 said.

25

MR THOMAS: Yes, that is correct, your Honour, yes. Your Honour, I think that both sides would need to consider exact ly what the next step is rather than 10 rush to it.

I-ns HONOUR: Well, there is no need to do thal.

MR TI-IOMAS : I am not suggesting your Honour was suggesting we should, what I'm saying is that there are a number ofissues thal I can sec

30 arising in relation to it and a number of ways it might proceed, yes.

35

J·n HONOUR: All right, well at this point I have ru led that the evidence of the record is, under the legislation, apparent ly admissible and that's where it stands at the moment.

MR THOMAS: Yes, and I suppose in one sense, your Honour could adjourn these proceedings or simply terminate Lhese proceedings and they can be reactivated in another way.

40 ~ns HONOUR: Well , anybody could make an application for some further - - -

MR THOMAS: Precisely, tllat's what I meant in that sense, so - --

45 HIS HONOUR: So, you' re saying, you don 't apply at this point fo r any

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further order but you want to consider your position.

MR THOMAS: I think that' s what we need to do with respect, your Honour, yes.

HIS HONOUR: All ri ght, well, it means you have performed your task Ms Tasneem.

MS TASNEEM: Yes, your Honour, so your Honour has said the 10 interview DVD is appare ntly admissible.

HIS HON OUR: Yes.

MS TASNEEM : Is your Honour ruling it is admitted in ev idence now? 15

!-US HONOUR: Well , we aren' t at the trial yet.

MR TI-IOMAS: That's right.

20 MS TASNEEM: No, but it can be tendered at the pre-trial.

25

30

!-US HONOUR: Yes, it can be tendered.

MS TASNEEM: I-las your Honour ruled - --

lilS HON OUR: It has been tendered_

MS TASNEEM: Well , it was tendered on the application regarding competence. I fo rmally tender that at the prc·trial hearing now.

HIS HONOUR: Let me j ust sec where the - I am just going 10 check the wording of that. No, that's the next step actually. If you look at section 40F, you have got the audio visual recording and it may then be played at the hearing of a proceeding for the sexual offence to which it relates, and

35 i f it is played at the hearing, be admitted. And what I am ruling is that at thal time in my view it should be admitted.

MS TASNEEM: I see, so it is provisionaUy admitted at thi s stage.

40 HIS HONOUR: In effect, yes, it is not really admitted or not because you haven' t reached that point but when you do you can take - you have my ruling that it would be admissible.

MS TASNEEM: As the court pleases_ 45

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IDS HONOUR: And it is subject of course to the redact ion that's been agreed.

MS TASNEEM: Yes.

HIS HONOUR: Which is under subsection (2), in effect, because I have said those parts that should be redacted are not admissible and of course that recording is simply played without the witness' presence or being able to be seen and you have given the appropriate notice already under

10 section 40J, so that should cover it.

15

MR THOMAS: As the court pleases.

HIS HONOUR: Okay, I adjourn these proceedings.

ADJOURNED

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ACT.0013.002.0238 R gggggggg - Royal … I-oS HONOUR: Yes J have tilem. MR THOMAS: They're agreed to be deleted_ I-ns HONOUR: Let me just- 218,219, Q and A_ 20 MR 1l-IOMAS: And 220