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8
Court of Criminal Appeal 16 March 2015

AF v R

[2015] NSWCCA 35

Sexual offences
CRIMINAL LAW APPEAL APPEAL UNDER S 5F CRIMINAL APPEAL ACT WHERE RULING LACKS FINALITY NOT AN INTERLOCUTORY JUDGMENT OR ORDER APPEAL INCOMPETENT

Citation: AF v R [2015] NSWCCA 35
Court: Court of Criminal Appeal, New South Wales
Date: 16 March 2015
Judge(s): Hoeben CJ at CL, Harrison J, R A Hulme J (unanimous)

Background

The applicant faced trial in the District Court on five counts of aggravated sexual assault in company under s 61JA of the Crimes Act 1900 (NSW). The complainant had been assessed by two experts as cognitively impaired, bringing her within the definition of a "vulnerable person" under Chapter 6 Part 6 of the Criminal Procedure Act 1986 (NSW).

The Crown sought, and District Court Judge Payne granted, a declaration that the complainant was a vulnerable person and a direction that her evidence in chief be given by playing a recording of a police interview conducted on 24 October 2013. This mechanism is provided for under s 306S and s 306U of the Criminal Procedure Act.

The applicant sought leave to appeal against Judge Payne's ruling under s 5F(3) of the Criminal Appeal Act 1912 (NSW), which permits appeal from an "interlocutory judgment or order" in criminal proceedings. The Court of Criminal Appeal was required to determine, as a threshold matter, whether the ruling was in fact an interlocutory judgment or order within the meaning of that provision.

  • Whether the District Court's ruling permitting a vulnerable complainant to give evidence by pre-recorded interview constituted an "interlocutory judgment or order" under s 5F(3) of the Criminal Appeal Act 1912, thereby founding jurisdiction for the appeal.
  • Whether Judge Payne erred in finding that the facts of the case could be better ascertained by the complainant giving evidence by recording, as required by s 306P(2) of the Criminal Procedure Act.
  • Whether the October 2013 police interview qualified as one conducted "in connection with the investigation" of an offence under s 306R, and whether the ruling impermissibly placed an onus on the accused.
  • Whether the trial judge erred by declining to order, under s 306Y, that the recording should not be used because it was not in the interests of justice.

Decision

R A Hulme J (with whom Hoeben CJ at CL and Harrison J agreed) addressed the merits of the four remaining grounds before turning to the jurisdictional question, finding no error established on any ground.

On ground 2, the unchallenged expert evidence strongly supported the conclusion that the facts could be better ascertained if the complainant gave evidence by recording. Inconsistencies or alleged inadequacies in the recorded interview did not compel a contrary finding. On grounds 3 and 4, the Court found no clear distinction between activity undertaken for investigative rather than prosecutorial purposes, and that the relevant statutory term should be interpreted broadly given the beneficial objects of the legislative scheme. On ground 5, the matters relied upon by the applicant as warranting an order under s 306Y (inconsistencies, unclear language, and a question about hallucinations) were matters that would arise regardless of how the evidence was given, and did not require the judge to find that use of the recording was not in the interests of justice.

The dispositive issue was jurisdiction. Hulme J held that the ruling was not an interlocutory judgment or order within s 5F(3). A ruling on how a vulnerable person may give evidence is not a ruling on admissibility of evidence, and it lacks the finality characteristic of an interlocutory order. The Court noted that the ruling can be revisited during the trial and, under s 306ZJ of the Criminal Procedure Act, a failure to comply with the Part does not affect the validity of any proceeding.

The Court observed, without finally resolving the point, that it had doubts about the Panchal decision's treatment of s 306ZJ as a complete answer to a ground of appeal against conviction, but this question was not determinative of the jurisdictional issue before the Court.

Orders Made

  • Leave to appeal pursuant to s 5F(3) refused.

Key Takeaways

  • A District Court ruling permitting a cognitively impaired complainant to give evidence by pre-recorded police interview under Chapter 6 Part 6 of the Criminal Procedure Act 1986 is not an "interlocutory judgment or order" within s 5F(3) of the Criminal Appeal Act 1912, and an appeal from such a ruling is therefore incompetent.
  • The ruling does not constitute a determination of admissibility of evidence, and it lacks the finality required to attract the s 5F(3) appellate jurisdiction.
  • Under s 306P(2), the threshold test that the facts may be "better ascertained" by vulnerable-person evidence procedures is capable of being satisfied on unchallenged expert evidence alone, notwithstanding inconsistencies or gaps in the recorded material.
  • Describing an interview as serving a prosecutorial rather than investigative purpose does not take it outside the scope of s 306R: the Court of Criminal Appeal indicated that the statutory language should be construed broadly given the beneficial legislative purpose.
  • The Court of Criminal Appeal expressed reservations about the holding in Panchal v R; R v Panchal [2014] NSWCCA 275 that s 306ZJ provides a "complete answer" to a challenge on appeal against conviction, though the point was left open as it was not necessary to resolve it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61JA
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), Ch 6 Pt 6 (ss 306M-306ZP), ss 306P, 306R, 306S, 306U, 306Y, 306ZJ
- Evidence Act 1995 (NSW)
- Evidence (Children) Act 1997 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- EK v R [2009] NSWCCA 4; 75 NSWLR 302
- Panchal v R; R v Panchal [2014] NSWCCA 275
- R v Bozatsis and Spanakakis (1997) 97 A Crim R 296
- R v F [2002] NSWCCA 125; 129 A Crim R 126
- R v Lethlean (1995) 83 A Crim R 197
- R v RAG [2006] NSWCCA 343
- R v Steffan (1993) 30 NSWLR 633