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Supreme Court 24 June 2014

R v Hines (No 2)

[2014] NSWSC 990

Public order & justice offences
CRIMINAL LAW EVIDENCE S 26 (A) EVIDENCE ACT CHILD WITNESS EVIDENCE OF CHILDREN RECORDED INTERVIEW

Citation: R v Hines (No 2) [2014] NSWSC 990
Court: Supreme Court of NSW
Date: 24 June 2014
Judge: Hamill J

Background

The accused stood trial in the Supreme Court on charges that are not detailed in this judgment. A key witness, identified only as SJ to protect his identity, was 16 years old at the time he gave a recorded police interview in March 2013 and was approaching 18 by the time of trial. Both the Crown and defence counsel jointly applied for SJ's evidence to be presented by playing that recorded interview, with any remaining evidence given via closed-circuit television rather than in open court.

The difficulty was a legislative gap. The Criminal Procedure Act 1986 (NSW) contains specific provisions enabling "vulnerable persons" to give evidence in this way, but those provisions are expressly confined to children under the age of 16. SJ was 16 when interviewed, placing him just outside the protective scheme.

Because the statutory vulnerable-persons regime did not apply, the parties jointly asked Hamill J to exercise the court's general power under s 26(a) of the Evidence Act 1995 (NSW) to achieve the same practical result.

  • Whether a witness aged 16 at the time of interview fell within the vulnerable persons provisions of the Criminal Procedure Act 1986 (NSW)
  • Whether the court could exercise its power under s 26(a) of the Evidence Act 1995 (NSW) to order that SJ's evidence be given by recorded interview and closed-circuit television, in circumstances where the statutory scheme did not apply

Decision

Hamill J confirmed that the vulnerable persons provisions in Part 6 of the Criminal Procedure Act did not extend to SJ. Section 306P confines those provisions to children under 16, and SJ was 16 when the interview was recorded, notwithstanding that he would qualify as a "child" under both the Evidence Act dictionary and the Children (Criminal Proceedings) Act 1987 (NSW).

His Honour turned to s 26(a) of the Evidence Act, which empowers a court to make orders it considers just regarding the way witnesses are questioned. Hamill J noted that this provision has received a broad operation in other contexts, including "hot-tubbing" of expert witnesses, and that the trial judge's duty is to ensure the parties receive a fair trial.

The joint application carried significant weight in the reasoning. Defence counsel confirmed that his client was not prejudiced by the proposed method and would in fact gain a forensic advantage, because material from the recorded interview that the defence intended to rely upon would emerge in a clear and predictable way. Hamill J also accepted that SJ appeared unsophisticated, which made him precisely the kind of witness the statutory scheme was designed for, even though he had fallen outside its terms.

On that basis, Hamill J made the order sought, directing that SJ's evidence in chief be given by playing the March 2013 recorded interview, with remaining evidence by closed-circuit television.

Orders Made

  • An order under s 26(a) of the Evidence Act 1995 (NSW) that witness SJ be questioned by playing the recorded interview made on 5 March 2013
  • An order that any remaining evidence from SJ be given by closed-circuit television
  • A reminder to all parties of the statutory prohibition on publishing the identity or name of child witnesses

Key Takeaways

  • The vulnerable persons provisions in Part 6 of the Criminal Procedure Act 1986 (NSW) apply only to children under 16; a witness who was 16 at the time of a recorded interview falls outside that regime, regardless of whether they are a "child" under other legislative definitions.
  • Section 26(a) of the Evidence Act 1995 (NSW) provides a residual mechanism enabling a court to order that evidence be given by recorded interview and closed-circuit television where the statutory vulnerable persons scheme does not apply.
  • A broad, flexible operation has been recognised for s 26(a), with courts in other jurisdictions applying it in varied procedural contexts, and the trial judge's duty to ensure a fair trial underpins its exercise.
  • The joint nature of the application, and the absence of any prejudice to the accused, were material factors in Hamill J's decision to exercise the discretion.
  • A legislative gap exists between the definition of "child" in the Evidence Act and Children (Criminal Proceedings) Act (under 18) and the age threshold in the Criminal Procedure Act vulnerable persons scheme (under 16), which can leave adolescent witnesses without automatic statutory protections.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 26(a)
- Criminal Procedure Act 1986 (NSW), ss 306M, 306P, 306U, 306ZB
- Children (Criminal Proceedings) Act 1987 (NSW), s 3

Cases:
- Harrington-Smith v Western Australia [2002] FCA 934
- LGM v CAM [2008] FamCA 185