Citation: R v Warren ROSS (No 3) [2013] NSWSC 2043
Court: Supreme Court of New South Wales
Date: 21 November 2013
Judge(s): Rothman J
Background
The accused stood trial for murder. At the time of the deceased's fatal injuries, five people were present in the home: the accused, the deceased's mother, and three children including the deceased. The two surviving siblings, aged 9 and 7 at trial (7 and 5 at the relevant time), were to give evidence via recorded interviews conducted shortly after the death.
The accused applied to exclude the evidence of both child witnesses. Their evidence did not include witnessing the infliction of the fatal injuries directly. Rather, it went to matters such as the deceased's whereabouts in the days before her death and a punishment regime that had been in place.
The application raised questions about the competence of the child witnesses, the reliability of their recorded interviews, and whether the risk of unfair prejudice to the accused outweighed the probative value of their evidence under section 137 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether the probative value of each child's evidence was outweighed by the danger of unfair prejudice to the accused under section 137 of the Evidence Act 1995 (NSW)
- Whether the reliability of evidence from very young witnesses, including concerns about contamination and interview technique, was relevant to that balancing exercise
- Whether the difficulties inherent in cross-examining young child witnesses constituted "unfair prejudice" in the relevant legal sense
Decision
Rothman J rejected the application to exclude the evidence of either child witness. Although neither child had witnessed the infliction of the fatal injuries, his Honour found their evidence carried significant probative value. The evidence was relevant to the deceased's whereabouts and to the punishment regime in the days leading up to her death, providing important circumstantial support for the evidence of the deceased's mother. The absence of their evidence, the Court noted, would itself have been significant.
On the question of reliability, Rothman J acknowledged that the recorded interviews contained some problematic features, including instances where questions appeared to be misunderstood, answers were internally inconsistent, and some propositions put to the children were known to be incorrect. However, his Honour confirmed that reliability is a matter for the jury to assess, following established authority. The jury would be in as good a position as counsel and the judge to evaluate the interviews, and jurors would bring their own experience of how children speak and behave.
Regarding the alleged unfair prejudice arising from restrictions on cross-examination of young witnesses, Rothman J drew a distinction between "unfairness" broadly and "unfair prejudice" in the statutory sense. The limitations on cross-examination created by a witness's age could be characterised as an imbalance, but not necessarily prejudice in the relevant legal sense. His Honour nonetheless took these matters into account in the exercise of discretion.
On the contamination concern, evidence on the voir dire (a preliminary hearing held in the absence of the jury) established that conversations had occurred between the children and others, though their full content was unknown. Rothman J found that appropriate judicial directions and warnings to the jury could address most, if not all, of the resulting unfairness. Whatever residual unfairness remained was overwhelmingly outweighed by the probative value of the evidence.
Orders Made
• The objection to the evidence is rejected.
Key Takeaways
- Probative value under section 137 of the Evidence Act 1995 (NSW) is not confined to direct evidence of the central act charged. Evidence with significant circumstantial relevance, even where it does not go directly to the infliction of injuries, can carry substantial probative weight.
- Reliability of witness evidence, including concerns arising from age, inconsistency, and interview technique, remains primarily a matter for the jury rather than a basis for exclusion by the trial judge, consistent with the approach in Shamouil, Mundine, and Adam v R.
- Jurors' familiarity with children's communication and behaviour is itself a legitimate consideration. The assessment of young witnesses is one of the functions for which juries exist in criminal trials.
- A distinction exists between "unfairness" in a general sense and "unfair prejudice" in the statutory sense under section 137. Limitations on cross-examination arising from a witness's age may create an imbalance but do not necessarily constitute unfair prejudice sufficient to warrant exclusion.
- Judicial directions and warnings can remedy, or substantially mitigate, concerns about potential contamination of children's evidence, and residual unfairness may still be outweighed by strong probative value.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), sections 97, 101, 137
Cases
- Adam v R [2001] HCA 57; (2001) 207 CLR 96
- R v Keenan Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302
- R v Linard Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228