R v Hines (No 2) [2014] NSWSC 990

Supreme Court New South Wales

Medium Neutral Citation: R v Hines (No 2) [2014] NSWSC 990 Decision date: 24 June 2014 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: I make an order under s 26(a) Evidence Act 1995 (NSW) that the witness, SJ, is to be questioned by playing the recorded interview made 5 March 2013 and that the balance of the evidence be given by closed-circuit television. Catchwords: CRIMINAL LAW - Evidence - s 26 (a) Evidence Act - Child Witness - Evidence of Children - Recorded Interview Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: Harrington-Smith v Western Australia [2002] FCA 934 LGM v CAM [2008] FamCA 185 Category: Procedural and other rulings Parties: Crown Accused: Alan John Hines Representation: Counsel: P McGrath (Crown) E Wilson SC (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Aboriginal Legal Service (Accused) File Number(s): 2013/52349 Publication restriction: Non publication of the name of the child witness under s 15A(7) of the Children (Criminal Proceedings) Act 1987 (NSW)

ex tempore Judgment (revised) 1HIS HONOUR: There is a joint application before the Court for the evidence of a witness, SJ, to be given by way of an interview recorded with him on 5 March 2013. SJ was born in August 1996 and so was 16 years of age at the time that he made that interview. He turned 17 in August 2013. He is now almost 18. 2In addition to the application that his evidence be given by way of that recorded interview, it is also the joint application of the parties that the witness give his evidence by closed-circuit television facility rather than entering into the courtroom. 3There is a specific provision in the Criminal Procedure Act 1986 (NSW) (the Act) for 'vulnerable persons' to give evidence in the manner suggested here: see ss 306M-306ZP and in particular s 306U (evidence in chief by recorded interview) and 306ZB (evidence by closed circuit televison). A vulnerable person is defined under s 306M of the Act as a child or a cognitively impaired person. However, those provisions do not apply to this witness because s 306P of the Act restricts the application of the relevant Part of the Act to "a child who is under the age of 16". 4SJ is a "child" on any common sense approach to the question. He was in year 10 at school when he made the interview. The questioning at the beginning of the interview makes it clear that the police who were investigating the case approached the interview on the basis that he was a child. They asked him a number of questions about his ability to know the difference between the truth and a lie in much the same manner that they would for very young children. 5Mr Wilson of Senior Counsel who appears for the accused in the trial has indicated that he has reviewed the video recording and that SJ is indeed a child. He says further that he appears to be quite unsophisticated. 6The definition of "child" in the Dictionary to the Evidence Act 1995 (NSW) (which refers to a "child of any age") and under s 3 of the Children (Criminal Proceedings) Act 1987 (NSW) ("a person under the age of 18 years") would apply to this witness. Unfortunately, because of s 306P, the relevant provisions of the Act do not apply to him. 7As a consequence, the parties jointly ask me to exercise a power under s 26(a) of the Evidence Act. That provision allows the Court to control the questioning of a witness and specifically allows the Court to make such orders as it considers just in relation to "the way in which witnesses are to be questioned". 8The provision has been considered on more than one occasion. It has allowed, for example, what is sometimes called "hot tubbing" to occur, where multiple witnesses are called at one time. It has been used in other ways and been given a relatively wide operation: see, for example, LGM v CAM [2008] FamCA 185; Harrington-Smith v Western Australia [2002] FCA 934. As O'Ryan J states in LGM v CAM "it is the trial judge's duty to ensure the parties have a fair trial". 9It seems to me, particularly given the position taken by Mr Wilson, which is a considered and sensible one, that it is appropriate for the evidence to be given in the manner proposed by the Crown. Mr Wilson has indicated that not only is his client not prejudiced by the method proposed but in fact will obtain some forensic advantage because it will ensure that material in that interview which Mr Wilson intends to use in Mr Hines' defence will come out in a clear and predictable manner. 10As I said, Mr Wilson has also referred to the witness as being perhaps a little unsophisticated, so that the purpose of the provisions in the Act really would ordinarily be directed to just this type of witness but unfortunately, as a result of the terms of the legislation, they do not apply. 11I propose to make an order acceding to the joint application of the parties. Accordingly, I make an order under s 26(a) Evidence Act that the witness, SJ, is to be questioned by playing the recorded interview made 5 March 2013 and that the balance of the evidence be given by closed-circuit television. 12I remind all concerned of the statutory prohibition concerning the publication of the identity and names of child witnesses.