R v Warren ROSS (No 3) [2013] NSWSC 2043

Supreme Court New South Wales

Medium Neutral Citation: R v Warren ROSS (No 3) [2013] NSWSC 2043 Hearing dates: 21 November 2013 Decision date: 21 November 2013 Jurisdiction: Common Law Before: Rothman J Decision: 1. Exclusion of evidence rejected. Catchwords: CRIMINAL LAW - exclusion of evidence - preliminary ruling - exercise of discretion - child witnesses - probative value outweighs unfair prejudice Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Adam v R [2001] HCA 57; (2001) 207 CLR 96 R v Keenan Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302 R v Linard Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 Category: Interlocutory applications Parties: Regina (Crown) Warren Ross (Offender) Representation: Counsel: E Balodis (Crown) S McNaughton SC (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) AXL Legal (Accused) File Number(s): 2011/310910 Publication restriction: None

EX TEMPORE Judgment 1HIS HONOUR: The accused applies for the exclusion of evidence from Asana Deaves and Tandara Warrick-Deaves, the siblings of the deceased. They are currently 9 and 7 years of age respectively. They were respectively 7 and 5 years of age at the time the infliction of the fatal injuries. 2Their evidence in chief will be adduced by playing their records interviews on 27 August 2011 and 8 September 2011 respectively. 3To the extent that the evidence is sought to be used for tendency purposes, I have already ruled that Asana's evidence meets the tests in s 97 and s 101 of the Evidence Act 1995 (the Act), but only taking into account the content and the tests for tendency evidence against an accused, but not any difficulty associated with competence to give evidence or contamination of the evidence. I ruled that Tandara's evidence did not satisfy these tests and is not admissible or to be used for tendency purposes. Issues have been raised as to competence to give evidence, and whether the unfair prejudice of the evidence outweighs its probative value for reasons other than the tendency use of the evidence. 4While the tests under s 101 of the Act overlap with, or are similar to, the tests under s 137 of the Act, the material now before the Court goes beyond the mere content (by way of transcript) of the evidence sought to be adduced. 5The application under s 137 of the Act is based on the proposition that the probative value of the evidence includes its reliability and is, in law, relevant to the exercise of the discretion to exclude the evidence. Further, the accused submits that the evidence is only indirectly relevant, because it is not evidence of the infliction of the fatal injuries. Therefore, it is submitted, the bar for unfair prejudice to outweigh probative value is lower. 6The basis for the foregoing submission is that neither of the young girls attests to seeing the infliction of the fatal injuries. 7At the time of the fatal injuries there were five persons at the home of the deceased. They were the accused, Ms Donna Deaves (the deceased's mother), the two girls and the deceased. 8During the course of the evidence so far, there have been suggestions that the deceased may have sustained the injury by accident associated with falling from a cupboard or bed. Other suggestions are that the injuries were sustained from one or other of these impugned witnesses hitting the deceased with a child's swing or other object. 9Whether or not all of those suggestions are ultimately made, the impugned witnesses give evidence of the whereabouts of the deceased (i.e. that she did not sleep in her bed or on her mattress); and that she stayed home when the eldest child, Asana, went to school on the Friday. They also give evidence of certain punishment regimes on the days leading up to the death of the deceased. 10Given the place these issues play in the circumstantial support for the evidence of Donna Deaves, even though neither child witnessed the infliction of the fatal injuries, I do not consider their probative value low. On the contrary, the evidence of each of them is significant and the absence of their evidence would be significant. 11The application under s 137 must be approached on that basis. 12One is always reluctant to require a young child to suffer the trauma of giving evidence, or to relive the trauma of any stressful situation, which the child is being asked to recall. However, that factor is not unfair prejudice to the accused. 13The prejudice identified by or on behalf of the accused can be categorised as matters affecting reliability and accuracy of the evidence. The interviews, in unedited versions, show, it is submitted: that the timing of questions or answers was problematic; that the witnesses were from time-to-time unresponsive; that some questions were plainly misunderstood or the answers plainly (or known to the Court to be) incorrect; internally inconsistent; illogical (e.g. remembering something in her sleep); obvious failure of memory or inconsistency with independent or other evidence; and, the answers to some questions were strange. 14The prejudice that is said to be unfair is that, by virtue of their age and the manner in which, of necessity, they must be cross-examined, these issues will be unusually difficult to test. This, it is said, will be particularly unfair and unfair in a manner of which the jury will be unaware or in which jurors would be inexperienced. 15Further, the manner of the interviewing includes the putting of some propositions, some known to be incorrect (at this stage and ought to have been known then). 16There are a number of responses to these issues. First, the reliability of the evidence is a matter for the jury: R v Keenan Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302; R v Linard Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; Adam v R [2001] HCA 57; (2001) 207 CLR 96. To the extent that some reliability issues are obvious from the interview itself, the jury is in as good a position as counsel and the judge are. 17Secondly, the members of the jury will have as much experience with children as do counsel and the judge, perhaps more. The assessment of witnesses is one of the reasons juries are used in criminal trials. 18Lastly, there are issues associated with contamination of the evidence, being either discussions between the girls, or between each of them and others. There is evidence on the voir dire that establishes such conversations occurred, but not the full content of the conversations. 19There will be, no doubt, some difficulty in cross-examining each of the children. That is true of all children. In criminal trials, with a jury, those difficulties are exacerbated because of the effect on the jury, were the cross-examination to be as searching as it might have to be. 20Nevertheless, these are not unusual or insurmountable difficulties. And they apply to all young witnesses, who, by their age or circumstance, engender empathy. In this case, unlike most, the child is not the victim and the evidence not as essential. Nevertheless, as earlier stated, the evidence has a significant probative value. 21The issues associated with possible contamination, and other issues of difficulty, can be the subject of direction or warning from the Court, which, in all of the circumstances, will overcome most, if not all, of the unfairness. That which is not overcome is overwhelmingly outweighed by the probative value of the evidence. 22In the foregoing exercise of weighing, I have weighed the probative value of the evidence, taking account, notwithstanding Shamouil and others, of its reliability and the age of the witnesses. I have also weighed that value against any unfairness to the accused. 23I take the view that "unfair prejudice" is slightly narrower than the term "unfairness". Similarly, not all prejudice is unfair. For example, the restrictions on cross-examination associated with the age of the witness creates an imbalance, which is, on one view, unfair, but may not be "prejudice" in the relevant sense. Nevertheless, I have taken it into account in the exercise of my discretion. 24I do not consider in those circumstances that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, and I reject the objection.