Citation: Deacon v Director of Public Prosecutions [2008] NSWDC 216
Court: District Court of New South Wales
Date: 4 September 2008
Judge(s): Bennett SC DCJ
Background
The appellant was convicted in the Local Court at Goulburn on 30 April 2008 of three offences: maliciously inflicting grievous bodily harm, common assault, and neglecting to provide adequate medical aid to a child in his care. The alleged victim was his seven-year-old son. The prosecution case was that the appellant held the child's hand against a heater, causing a severe burn to his finger and knuckle, then struck and kicked the child in a bedroom. The appellant denied causing the burn, claiming the child had accidentally injured himself.
The Local Court proceedings were conducted with considerable informality. The child gave evidence via a remote witness room, but his cross-examination covered only five pages of transcript. Crucially, no proposition was ever put to him that the appellant had not caused the burn or the other alleged assaults. The prosecution tendered only a written transcript of a police interview with the child, rather than the audio-visual recording of that interview.
The appellant appealed his convictions to the District Court. A central issue on appeal was whether the Local Court proceedings had been properly conducted, and whether the District Court could fairly determine the appeal on the material that had been before the magistrate.
Legal Issues
- Whether the Local Court proceedings were properly conducted, given that the child complainant was not appropriately cross-examined and the audio-visual recording of his police interview was not tendered.
- Whether, in those circumstances, the Crown should be permitted to adduce the audio-visual recording of the child's police interview as fresh evidence on appeal under sections 18 and 19 of the Crimes (Appeal and Review) Act 2001.
- Whether the child complainant should be required to attend and give evidence on the hearing of the appeal.
- Whether a transcript alone of a child complainant's out-of-court representations could serve as a sufficient evidentiary basis for assessing the child's credibility and reliability.
Decision
The District Court found that the Local Court proceedings had not been properly conducted. Two significant irregularities emerged. First, the prosecution had tendered only a written transcript of the child's police interview, rather than the audio-visual recording. Under the applicable legislative framework (the Evidence (Children) Act 1997 and the Criminal Procedure Amendment (Vulnerable Persons) Act 2007), such recordings carry evidentiary significance that a transcript cannot replicate. Second, the agreement between the parties to dispense with Browne v Dunn obligations meant that the child was never challenged on the central allegations, leaving his account untested in any meaningful way.
The court found that a judge hearing the appeal could not properly assess the child's credibility and reliability, nor determine the appellant's guilt beyond reasonable doubt, on the basis of the material before the magistrate. The written transcript provided no means of evaluating the child's demeanour, manner of responding, or the quality of his account during the police interview. The court considered that the recording was essential to the proper conduct of the appeal.
Applying sections 18 and 19 of the Crimes (Appeal and Review) Act 2001, the court was satisfied that there were substantial reasons, in the interests of justice, to permit the Crown to adduce the audio-visual recording as fresh evidence. The court drew on Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618 for the principle that the "substantial reasons" threshold must be understood in its context, which here included the need for a judge to properly determine guilt beyond reasonable doubt. It also directed that the child complainant attend to give evidence on the appeal, subject to appropriate protections including the option of giving evidence from a remote witness room, and with cross-examination not to exceed proper bounds given the child's age.
Orders Made
- The Crown is permitted to tender as fresh evidence the electronic recording of the interview between the investigating official and the complainant on 25 July 2007, the transcript of which was Exhibit 2 in the Local Court.
- The complainant is to attend and give evidence on the hearing of the appeal.
Key Takeaways
- A written transcript of a child complainant's police interview is not an adequate substitute for the audio-visual recording when credibility and reliability are the central issues; a court cannot properly assess those matters from a transcript alone.
- Under sections 18 and 19 of the Crimes (Appeal and Review) Act 2001, the "substantial reasons" threshold for admitting fresh evidence on appeal is construed in context, including the need for the appellate court to properly determine guilt beyond reasonable doubt.
- Where Local Court proceedings are not properly conducted, the District Court on appeal may receive fresh evidence and require witnesses to give evidence afresh, even where those witnesses are vulnerable child complainants.
- The protections available to child witnesses in the original proceedings, including remote witness facilities and limits on cross-examination, remain available on appeal.
- An agreement between the parties to dispense with Browne v Dunn obligations did not cure the underlying problem that the child's evidence went effectively untested on the critical factual allegations.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(1)(b), 59(1), 61
- Children and Young Persons (Care and Protection) Act 1998 (NSW), s 228
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 19
- Criminal Procedure Act 1986 (NSW)
- Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (NSW)
- Evidence (Children) Act 1997 (NSW)
Cases:
- Browne v Dunn (1983) 6 R 67
- Charara v The Queen [2006] NSWCCA 244
- Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618