New South Wales Supreme Court CITATION : DPP v SW & ANOR [2009] NSWSC 524 HEARING DATE(S) : 1 June 2009 JUDGMENT DATE : 1 June 2009 JURISDICTION : Common Law JUDGMENT OF : Adams J at 1 1. Relief claimed by the Director must be refused. DECISION : 2. The matter is remitted to the Children's Court but the order is varied as follows – A duplicate of the recording of the interview of the victim to be delivered to the defendant's solicitor on or before 5 June 2009 noting the undertaking of the solicitor that the recording is not to leave his possession and is to be listened to only by that solicitor, defendant's counsel and the interpreter/s employed for the purpose of translation. 3. The plaintiff must pay the defendant's costs of the summons. CATCHWORDS : Vulnerable witness - recording of interview - whether Court can order production - need to check accuracy of translation - desirable conditions LEGISLATION CITED : Crimes Act 1900 s 61J Criminal Procedure Act 1986 s 306B CATEGORY : Procedural and other rulings Director of Public Prosecutions (NSW) (Plaintiff) PARTIES : SW (First defendant) Children's Magistrate G Still (Second defendant) FILE NUMBER(S) : SC 11515/09 COUNSEL : A Mitchelmore (Plaintiff) N Carney (First defendant) B Scheepers (Plaintiff) SOLICITORS : Georgiadis & Baker (First defendant) I Knight (Second defendant) LOWER COURT JURISDICTION : Children's Court THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J MONDAY 1 JUNE 2009 011515/09 - DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v "SW" & ANOR JUDGMENT 1 HIS HONOUR: On 25 September 2008 the first defendant was charged under s 61J of the Crimes Act 1900 with aggravated sexual assault. It is alleged that the victim was, at the time, aged fifteen years of age. Before she reached the age of sixteen she was interviewed by police and a recording made of that interview. Whether the interview was video as well as audio recorded is unclear, but this distinction does not matter since this dispute concerns the disposition of the audio recording only. 2 On 12 February 2009 the matter was listed in the Children's Court for directions concerning the impending trial. The learned Magistrate ordered that the prosecutor serve a copy of the tape recording (mistakenly referred to as a video recording) on the accused person's solicitor upon an undertaking that it would not leave the possession of the solicitor and be listened to only by that solicitor, counsel and an interpreter. The reason stated - and not disputed - for the request by the accused's counsel for possession of the tape recording is that there were live questions as to the accuracy of the transcript which had been certified by the prosecutor as accurate and which it was proposed would be tendered in the proceedings pursuant to s 306B of the Criminal Procedure Act 1986. The learned Magistrate required the prosecutor to create a copy of the tape and to produce that copy in due course to the accused's solicitor. 3 The Director of Public Prosecutions has taken over the carriage of this matter and obtained a stay from Rothman J. The Director, by summons, seeks to quash the order made by the Magistrate for production of the duplicate tape recording. Were this matter not the subject or potential subject of statutory restriction the order made by the Magistrate would be seen as having been made, in the ordinary course, for proper reasons and indeed would be unremarkable. However, the Director points to the provisions of s 185 of the Act, which is in the following terms: "185 Recording of interviews with vulnerable persons (1) If the prosecutor intends to call a vulnerable person to give evidence in proceedings, the brief of evidence may include a transcript of a recording made by an investigating official of an interview with the vulnerable person, during which the vulnerable person was questioned by the investigating official in connection with the investigation of the commission or possible commission of the offence (as referred to in section 306R). (2) A copy of the transcript of the recording must be certified by an investigating official as an accurate transcript of the recording and served on the accused person in accordance with section 183. (3) A brief of evidence that includes a transcript of a recording of an interview with a vulnerable person is not required also to include a written statement from the vulnerable person concerned. (4) The transcript of the recording is taken, for the purposes of this Division, to be a written statement taken from the vulnerable person. Accordingly, any document or other thing identified in the transcript as a proposed exhibit forms part of the brief of evidence. (5) Nothing in this Division requires the prosecutor to serve on the accused person a copy of the actual recording made by an investigating official of an interview with the vulnerable person. (6) This section does not affect section 306V (2). (7) In this section: " investigating official " has the same meaning as it has in Part 6 of Chapter 6. " vulnerable person " has the same meaning as it has in Part 6 of Chapter 6. Note. Part 6 of Chapter 6 allows vulnerable persons (children and cognitively impaired persons) to give evidence of a previous representation in the form of a recording made by an investigating official of an interview with the vulnerable person. Section 306V (2) (which is contained in that Part) provides that such evidence is not to be admitted unless the accused person and his or her lawyer have been given a reasonable opportunity to listen to or view the recording." 4 The point is a short one. The Director submits that no order can be made by the Magistrate for production of the copied tape recording to the accused's solicitor because it would comprise, in effect, part of the "proof of evidence" required by Div 2 of chapter 4 of the Act and that subs 185(5) does not require the prosecutor to serve a copy of the actual recording. There are a number of difficulties with this contention which have been explored during argument and I do not intend to cover them all here. It is sufficient to say that Div 2 of chapter 4 of the Act provides for pre-trial procedures which are to be followed by the parties to criminal proceedings and, aside from irrelevant references to the function of the Court (for example in ss 183(4), 187 and 188), imposes obligations, in substance, on the prosecution. In my view it is clear that subs 185(5) is limited to the necessity for the prosecutor to comply with procedures mandated by Division 2. It does not limit the power of a court to require production of any matter which the court considers ought to be produced; still less impose any limits on the court's powers as to access. Those powers comprehend the making of copies, whether of documents or reportings, and the giving of access including by way of actual possession of any matter produced including copies. 5 In effect, this is what the learned Magistrate did in this case, although, as it happens, his Honour did not require first production of the original recording to the Court, the making of a copy and the granting of access by way of physical possession to the solicitor by way of access. These are mere procedural requirements which any Court has the power to adjust according to the exigencies of the case. In my view the learned Magistrate acted reasonably in shortcutting the process by requiring the making of a copy recording and requiring its delivery to the accused's solicitor subject to the undertaking which I have mentioned. 6 Reference was made by Ms Mitchelmore of counsel for the Director to the purpose for which s 185 was enacted; namely, the concern that tape recordings or video recordings might be used by defendants in sexual cases for improper purposes. Of course, such use would constitute a serious contempt of court at all events but, quite reasonably, if I might say so, the Parliament took the step of ensuring that in the course of its duties of disclosure, the prosecution (here the Police) did not act in a way that might have had the potential to enable misuse of the material. To my mind, the powers of the Court are left untouched, no doubt because it was accepted that the Court would not grant access to such material unless proper safeguards were in place and, furthermore, of course, as the Court makes specific orders in specific cases whereas the effect of the disclosure provisions in Division 2 of chapter 4 of the Act are general and undiscriminating. 7 If I may say so, with respect, it might have been preferable for the learned Magistrate in the first case to require formal production to the Court of a copy of the tape recording in question and then for the Court to make orders as to access, thus clearly expressing the fundamental responsibility of the Court in relation to material produced pursuant to a compulsory process. I should, however, say in fairness to his Honour that this procedure was not suggested by either the prosecutor or defence counsel and it is, no doubt, frequently the case in Magistrates' Courts that there is a press business encouraging the use of informal procedures. In my view, however, this is an argument rather of form than substance. Accordingly, the relief claimed by the Director must be refused. The matter is remitted to the Children's Court but I vary the order so that it reads as follows: a duplicate of the recording of the interview with the victim be provided to the defendant's solicitor on or before 5 June 2009, noting the undertaking of the solicitor that the recording is not to leave his possession and is to be listened to only by that solicitor, defendant's counsel and an interpreter or interpreters employed for the purposes of translation. 8 The plaintiff must pay the defendant's costs of the summons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.