Citation: Giannasca v R (No 2) [2011] NSWSC 1681
Court: Supreme Court of New South Wales
Date: 6 May 2011
Judge(s): Price J
Background
The accused faced a charge of murdering his wife, who disappeared in January 2002 and whose body was never found. The Crown's case was largely circumstantial, with an important component being the evidence of the deceased's daughter (CV), who was ten years old when police interviewed her in January 2003. Those interviews were audio-visually recorded and the Crown intended to tender the recordings as CV's evidence in chief, as permitted for child witnesses under the Criminal Procedure Act 1986.
CV's interviews contained disclosures that the accused's father had been sexually assaulting her, and that CV had told her mother and the accused about this on the night the deceased disappeared. The Crown contended this evidence was relevant to motive: the deceased was known to be highly protective of her daughter, and the argument that followed the disclosure provided a circumstantial reason for the killing.
The accused brought a motion on the voir dire (a preliminary hearing before the jury is empanelled) seeking two forms of relief: exclusion of CV's interview evidence under s 138 of the Evidence Act 1995, on the ground it was obtained improperly or in consequence of impropriety, and a permanent stay of the entire proceedings. The application arose in the context of a prior voir dire before Buddin J, which had resulted in the exclusion of CV's evidence on different grounds. The Court of Criminal Appeal overturned that ruling, but the s 138 argument had not been determined at either stage.
Legal Issues
- Whether the audio-visual recordings of CV's January 2003 police interviews should be excluded under s 138 of the Evidence Act 1995 on the basis that they were obtained improperly or in consequence of an impropriety
- Whether the proceedings should be permanently stayed on the grounds of abuse of process or intolerable unfairness to the accused
Decision
On the s 138 application, Price J examined the circumstances in which the interviews were conducted, including police conduct in arranging and carrying out the interviews with CV, who was a ten-year-old child. His Honour assessed whether any impropriety was established in the obtaining of the evidence and, applying the balancing exercise required by s 138, considered the public interest in admitting the evidence against the nature and seriousness of any impropriety. Price J concluded that the evidence should not be excluded.
On the question of fairness to the accused, his Honour noted that the jury would have substantial tools to assess the reliability of CV's evidence. These included the possibility of expert evidence on how the mode of questioning could affect credibility, expert evidence on the potential impact of two hypnosis sessions on CV's recollections, and the prospect of a jury warning under s 165(1) of the Evidence Act that CV's evidence was "of a kind that may be unreliable." The accused's ability to cross-examine CV and to call his own evidence was also noted.
On the permanent stay application, Price J found no basis for concluding that continuing the prosecution would be oppressive or that the Crown case was, as the accused contended, "doomed to fail." The strength of the Crown case had not been fully canvassed on the voir dire, the statements of all Crown witnesses had not been tendered, and Price J declined to make findings about the sufficiency of evidence to sustain a conviction. The case was not characterised as extreme, and the stay was refused.
Orders Made
- The notice of motion was dismissed.
Key Takeaways
- A s 138 Evidence Act 1995 application requires the court to balance the public interest in admitting improperly obtained evidence against the nature and seriousness of the impropriety; the Supreme Court here declined to exclude audio-visual recordings of child witness interviews on that basis.
- Where child witness interviews are challenged, the availability of expert evidence on questioning techniques, expert evidence on the effects of hypnosis, jury warnings under s 165(1) of the Evidence Act, and cross-examination are all relevant to the fairness assessment.
- Permanent stay applications carry a high threshold; the Supreme Court declined to characterise the proceedings as extreme or the Crown case as incapable of sustaining a conviction where the full evidence had not been canvassed on the voir dire.
- Under s 306U(2) of the Criminal Procedure Act 1986, a person who was under 16 at the time of a recorded interview may give evidence in chief by means of that recording even after they have ceased to be a child, subject to the court's power under s 306Y to order otherwise in the interests of justice.
- The fact that the Court of Criminal Appeal had previously ruled on related evidence in the same case did not preclude a different judge from determining a distinct ground of objection, specifically the s 138 argument, that had not been resolved in the earlier proceedings.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 38, 137, 138, 165
- Criminal Procedure Act 1986 (NSW), ss 306U, 306Y
- Children (Criminal Proceedings) Act 1986 (NSW)
- Crimes Act 1900 (NSW)
Cases:
- Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222
- R v JG [2009] NSWSC 1053
- Dupas v The Queen [2010] HCA 20
- Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619
- Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
- Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 227 ALR 353
- R v Cook [2004] NSWCCA 52
- R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82
- R v Coulstock (1998) 99 A Crim R 143
- R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169
- R v Frangulis [2006] NSWCA 363
- R v Glennon [1992] HCA 16; (1992) 173 CLR 592
- R v McKeough [2003] NSWCCA 385
- R v Patsalis & Spathis [No 3] [1999] NSWSC 718
- R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228