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District Court 18 August 2015

R v AF

[2015] NSWDC 189

Sexual offences
CRIMINAL LAW JUDGMENT UNAVAILABLE WITNESS HEARSAY EVIDENCE

Citation: R v AF [2015] NSWDC 189
Court: District Court of New South Wales
Date: 18 August 2015
Judge: Berman SC DCJ

Background

The accused had originally faced trial in 2007 on charges of sexual assault. The complainant began giving evidence, but the proceedings were aborted when questions arose about the accused's fitness to be tried. Following a fitness hearing, a special hearing was conducted under the Mental Health (Forensic Procedures) Act, at which the complainant completed her evidence. That evidence was recorded by audio-visual means and transcribed. The accused was found to have committed the offences and a limiting term was imposed.

Years later, the Mental Health Review Tribunal formed the view that the accused had become fit to be tried. A fresh fitness hearing was held, the accused was found fit, and the matter was listed for trial. The Crown then sought to have the complainant's recorded evidence from the special hearing admitted at the new trial, rather than requiring her to testify again.

The Crown's initial application relied on section 306I of the Criminal Procedure Act, but that application was withdrawn and refused. The Crown then made a fresh application under section 65 of the Evidence Act, arguing the complainant was an "unavailable" witness.

  • Whether section 306I of the Criminal Procedure Act covers the field, such that section 65 of the Evidence Act cannot independently operate to admit evidence given at an earlier special hearing.
  • Whether the complainant was "mentally unable" to give evidence within the meaning of the "unavailable witness" definition in the dictionary to the Evidence Act.
  • Whether the probative value of the complainant's recorded evidence substantially outweighed any danger of unfair prejudice to the accused, given the circumstances in which cross-examination at the special hearing had occurred.

Decision

Berman SC DCJ rejected the submission that section 306I of the Criminal Procedure Act exhausts the legislative field on the admissibility of evidence from earlier proceedings. His Honour reasoned that if parliament had intended to exclude special hearing evidence from any later trial, section 65 of the Evidence Act would have been amended accordingly. The general discretionary provisions of the Evidence Act remain available to address any unfairness to an accused, and nothing in section 306I signals a contrary intention.

On the question of unavailability, his Honour examined the 2010 amendment to the Evidence Act's definition of "unavailable witness," which extends to a person who is "mentally unable to give the evidence" where it is not reasonably practicable to overcome that inability. Drawing on the second reading speech and the joint Law Reform Commission report (ALRC 102) that prompted the amendment, his Honour held that mental inability is established where giving evidence would cause emotional or psychological harm or have a significant adverse effect on mental health.

The officer-in-charge gave evidence of the complainant's history: she had made three suicide attempts, one occurring very shortly after she completed her evidence at the special hearing, with the others sufficiently serious to require hospitalisation. She was unable to watch a recording of her own special hearing evidence without being taken back to the trauma. His Honour acknowledged the absence of expert psychological or psychiatric evidence, and refused a late Crown application for an adjournment to obtain it. However, he found the existing evidence sufficient to establish that the complainant would suffer significant harm if required to give evidence again, and was therefore unavailable.

On the question of prejudice, his Honour accepted that the cross-examination at the special hearing carried some risk of unfair prejudice, noting the accused had been found unfit and removed from the courtroom during much of it. Nevertheless, his Honour was satisfied that the cross-examination was conducted on proper instructions and that all relevant matters were put to the complainant in compliance with the rule in Browne v Dunn. The probative value of the evidence substantially outweighed the danger of unfair prejudice. Accordingly, the Crown was permitted to tender the recorded evidence at trial, subject to editing to remove any outbursts by the accused audible on the recording.

Orders Made

  • The Crown's application to tender the complainant's recorded evidence from the special hearing was granted under section 65 of the Evidence Act.
  • The recorded evidence was to be edited to remove any outbursts by the accused before being played to the jury.

Key Takeaways

  • Section 306I of the Criminal Procedure Act does not occupy the field to the exclusion of section 65 of the Evidence Act as an independent basis for admitting evidence from earlier criminal proceedings, including special hearings.
  • Under the 2010 amendment to the Evidence Act's "unavailable witness" definition, a complainant may be mentally unable to give evidence where doing so would cause serious emotional or psychological harm, even if the person is physically and cognitively capable of communicating.
  • Expert psychological or psychiatric evidence is not strictly required to establish mental unavailability, though its absence is a relevant consideration; a history of serious and temporally connected self-harm, together with consistent police officer observations, can be sufficient in the circumstances.
  • A finding of unfair prejudice does not automatically lead to exclusion; where probative value substantially outweighs the danger of prejudice, the evidence may be admitted even where cross-examination at an earlier proceeding may have been limited by the accused's then-unfitness.
  • Appropriate directions to the jury about the circumstances of prior cross-examination may themselves create further prejudice, and this dynamic forms part of the balancing exercise a court undertakes under the Evidence Act.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act (NSW), section 306I
- Mental Health (Forensic Procedures) Act (NSW)
- Evidence Act 1995 (NSW), section 65 (including subsections 65(2)(a), (b) and 65(3)); dictionary definition of "unavailable"
- Evidence Amendment Act 2010 (NSW)

Cases
- Browne v Dunn (1893) 6 R 67

Other Materials
- ALRC 102 (Joint Law Reform Commission Report of the Australian, New South Wales and Victorian Law Reform Commissions)
- ALRC Issues Paper 28
- ALRC Discussion Paper 69