PJ v R

1. [1]

   BASTEN AJA: The applicant in this matter, whose name is not used pending a forthcoming trial, seeks leave to appeal from a ruling of the judge before whom the matter is presently listed, under s 5F of the Criminal Appeal Act 1912 (NSW). The ruling was a refusal to permit the evidence of two children to be reopened for the purpose of further cross-examination. The case raises two issues, namely:

2. [2]

   In order to address these questions, it is necessary to provide an outline of the factual and procedural circumstances in which the questions arose.

Factual and procedural circumstances

1. [3]

   An indictment dated 2 February 2023 charged the applicant with two counts of sexual intercourse with his daughter, then aged four years, under s 66A(1) of the Crimes Act 1900 (NSW). The applicant was further charged with two counts of intentional sexual touching of his daughter, under s 66DA of the Crimes Act. All of the offences were said to have taken place within a period of one week between 28 June and 4 July 2021, at Bass Hill, where the applicant then resided.

2. [4]

   The two serious allegations of sexual intercourse involved digital penetration of the vagina. The daughter gave evidence of the assaults using the word “tundu” or “rude part” to refer to her vagina. The first evidence of complaint arose when she was crying as she left the bathroom after using the toilet, and her brother asked her what the matter was. The brother, who was eight years old, said that his sister had told him that their father had touched her tundu. The daughter later gave her mother the same account. On a second occasion the brother said his sister came out of the toilet after their father had cleaned her and had said to him, “Daddy put his hand in my, in my tundu”.

3. [5]

   The incidents were alleged to have occurred during a week of the school holidays when the children were living with their father, pursuant to an order of the Family Court made by consent some two weeks earlier on 16 June 2021. The children were returned to the mother on 5 July 2021, on which day the girl told her mother what had happened. The mother took the children to the police, and officers of the Joint Investigation Response Task Force (JIRT) took statements from the children.

4. [6]

   On 8 July 2021, the applicant was arrested and interviewed at Bankstown Police Station. In the course of the electronically recorded interview (ERISP) the applicant gave evidence denying any misconduct and stating in substance that the mother had instigated the children’s stories of the father’s misconduct in order to prejudice his position in ongoing custody proceedings in the Family Court. A similar allegation had been made by him when arrested, that allegation being recorded on the body-worn cameras used by the arresting officers.

5. [7]

   There are two details of the allegations which are important for present purposes. One is that the allegations sought to implicate the mother in the concoction of false stories; the other is that this was said not to be the first time that she had taken such steps. Key passages in the applicant’s record of interview read as follows:

6. [8]

   On 1 April 2022, Traill DCJ presided over a hearing at which pre-recorded evidence was taken from the girl and the boy, pursuant to s 306U of the Criminal Procedure Act 1986 (NSW). A scheme for the procedure for taking evidence from children in child abuse cases was introduced into Sch 2, Pt 29 to the Criminal Procedure Act by the Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 (NSW). Although the Pilot Scheme operated for a limited period, it was later extended. It applied to the present proceedings.

7. [9]

   As explained by counsel for the applicant in written submissions to the trial judge, the complainant’s pre-recorded evidence contained the following passages in cross-examination: [1]

8. [10]

   The submissions for the applicant then stated:

9. [11]

   This allegation was oblique: the allegation was not that “her mother had told the complainant to tell police”: clearly she was responsible for the complainant speaking to JIRT officers. Rather, the allegation was that she had told the complainant (and her brother) to make complaints that were untrue.

10. [12]

    The complainant’s brother was cross-examined to suggest that he did not want to go to stay with his father and that he made up stories to portray his father in a bad light, so that he would not have to stay with him. The following cross-examination was relied upon: [2]

11. [13]

    By a notice of motion filed on 2 February 2023, the applicant sought leave for both the complainant and her brother to be “recalled to give further evidence”. The application was made under Sch 2, cl 87 to the Criminal Procedure Act, which precludes further evidence being given, subject to the leave of the Court. Clause 87 reads:

12. [14]

    The basis of the application was that the applicant should be allowed to cross-examine each of the children to seek to establish that it was their mother, rather than the complainant or her brother who had instigated the concoction of a false story. Clearly, cl 87(3)(a) was not engaged, because there was no “matter” of which the applicant could not reasonably have been aware at the time of the pre-recorded evidence hearing. Rather, the material to be put to the children in any further cross-examination was by way of questions formulated in accordance with the allegations made by the applicant to police, as to the mother’s role in concocting the events described by the children.

Jurisdiction of this Court

1. [15]

   In order to address the first question, it is sufficient to note the judge’s conclusion in dismissing the notice of motion, namely: [3]

2. [16]

   That, it may be noted, is a stronger finding than that required by cl 87(3): it would suffice for the judge not to have been satisfied that it was in the interests of justice to grant leave. Unless affirmatively so satisfied, the judge was denied the power to grant leave.

3. [17]

   The jurisdictional question is whether the refusal of the primary judge to permit the recall of the children for further cross-examination amounted to an “interlocutory judgment or order” for the purposes of s 5F(3) of the Criminal Appeal Act. If it did not, the application before this Court must be dismissed. If it did, there is a question as to whether the Court should grant leave to the applicant to pursue the appeal.

4. [18]

   As explained in R v Steffan: [4]

5. [19]

   The Court then turned to consider the meaning of the phrase in question, which was not defined: [5]

6. [20]

   The Court referred to R v Powch [6] (which was relied upon by the Director in the present case), in which the Court had held that no appeal lay under s 5F from the refusal of a trial judge to direct the recall of a prosecution witness for further cross-examination. Powch had held that the refusal was a “ruling on a procedural matter, and is not in any sense an interlocutory judgment or order”. [7] However, in Steffan, this Court observed that this distinction “would not always be an accurate one”.

7. [21]

   By the time of Steffan, some six years after the introduction of s 5F, it was clear that uncertainty as to the scope of the provision was unresolved. Steffan itself held in relation to a ruling as to the admissibility of illegally obtained evidence: [8]

8. [22]

   That the ruling cannot be entered in the records of the court as a judgment is no doubt correct, but other rulings which are not as a matter of practice entered in any record, are treated as interlocutory orders. Indeed, it is not clear that anything is entered on the record in criminal proceedings other than the verdict, which was traditionally entered by being written on the back of the indictment. (The indictment still contains a form for entry of the verdict.)

9. [23]

   One procedural change which succeeded the introduction of s 5F and has been expanded since the earlier rules considered in Steffan, is the power and procedures by which criminal courts address matters before the commencement of the trial and the empanelling of a jury. The fragmentation of the trial procedure in circumstances, which is avoided where matters are dealt with in advance of the trial, is a significant consideration in addressing the scope of s 5F. Further, pre-trial rulings are apt to be attended by a greater level of formality than those made in the course of a trial. The proposition that a ruling permitting evidence to be given which is later held to be inadmissible (resulting in the discharge of a jury) must surely involve a high level of disruption of the criminal trial process.

10. [24]

    The second matter that has undergone considerable change since 1987 (and indeed 1993) is the increased regulation of the trial process, relevantly for present purposes, in relation to the evidence of children and particularly in relation to sexual offences. The range of matters which may therefore be treated as subject to appeal under s 5F has thus potentially expanded.

11. [25]

    Nor is it entirely clear what is meant by enquiring if the judicial ruling “commands that anything be done (or not done)” in the sense of being an order of the court. A ruling on the admissibility of evidence binds the parties, unless it is revoked or overturned on appeal. It may, of course, be described as a procedural ruling, but Steffan casts doubt on the value of that description as a basis for distinguishing appealable interlocutory orders from other rulings.

12. [26]

    Some steps taken by the judge in the course of a criminal trial will not on any view be interlocutory judgments or orders. The directions given to a jury provide an example. Where a judge had directed the jury to discharge the accused and the jury had entered a verdict accordingly, an attempt to appeal from the judge’s directions on questions of law was rejected in the King v Snow. [9]

13. [27]

    These difficulties were revisited by this Court in SC v R. [10] That case involved the relatively recent procedure for the appointment of a “children’s champion” or “witness intermediary” for a witness under 16 years of age, in proceedings for prescribed sexual offences. [11] The case involved a challenge to the refusal of the primary judge to revoke the appointment of a particular witness intermediary. In SC, the Court held that the refusal of the primary judge to exercise a power to revoke the appointment of a witness intermediary fell within the scope of s 5F.

14. [28]

    A number of propositions may be derived from the present state of the authorities.

    1. (1)

       First, although rulings on the admissibility of evidence do not generally fall within the terms of s 5F, if they have the “character and effect” of, for example, putting an end to the proceedings, or determining whether or not there should be separate trials, they may fall within s 5F. [12]

    2. (2)

       Secondly, a ruling that a complainant was not competent to give unsworn evidence was capable of engaging s 5F. [13]

    3. (3)

       Thirdly, a finding that a prosecution witness was a “vulnerable person”, so that evidence could be received of a previous representation made by a recorded interview, pursuant to s 306S of the Criminal Procedure Act, was not subject to appeal under s 5F. In AF v R [14] it was concluded that the manner of giving evidence was distinguishable from a finding that the witness was not competent to give evidence and was in the same category as an evidentiary ruling which could be reviewed in the course of the trial. [15]

    4. (4)

       Fourthly, in SC v R this Court held that the decision not to revoke the appointment of a particular witness intermediary fell within s 5F. [16]

15. [29]

    The reasoning in SC is reflected in the following passage:

16. [30]

    It may appear that the Court has been more ready to find that s 5F is engaged in circumstances where error is discerned and where intervention would not fragment the conduct of a criminal trial, both of which are no doubt also important considerations in relation to a grant of leave, where leave is required under s 5F(3). However, it may be accepted that the decisions can be reconciled by reference to the form of the statutory procedure involved. As counsel for the Director fairly noted, the refusal to have the children recalled to give further evidence was not in the same category as a finding that the witnesses were not competent, and bore some similarity to a ruling on the admissibility of evidence, in that it could be reviewed in the course of the trial. That was a matter of practical relevance in circumstances where the question was whether the mother had put the children up to telling concocted stories and the mother was to be called in the prosecution case. By way of contrast, SC was concerned with an entirely separate matter from the actual giving of evidence, namely the appointment of a witness intermediary, but in circumstances where the appointment itself was a condition precedent to the child giving evidence.

17. [31]

    While it is true that a grant of leave is a condition precedent to the children giving further evidence, the ruling under cl 87 is closer to one limiting the scope of cross-examination or otherwise rejecting a line of questioning. It is also analogous to a refusal to require the prosecution to recall a witness, or allow it to reopen its case. If such rulings were made in the course of a trial it seems clear that s 5F would not be engaged. In principle, the fact that such a ruling is made before the trial commences does not alter the character and effect of the ruling. It follows, in my view, that s 5F is not engaged and the application for leave to appeal under s 5F(3) should be refused.

Merit of application

1. [32]

   Against the possibility that the foregoing finding as to the operation of s 5F is wrong, it is appropriate to address the substantive challenge to the ruling of the primary judge. Although the Director submitted that, if s 5F were engaged, leave should be refused, that was on the basis that the application lacked merit. On the other hand, the delays of 10 months from the time of the pre-recorded evidence hearing to the application for leave for the children to give further evidence, and a further month from the refusal of that application to the filing of the notice of appeal, militate against a grant of leave.

2. [33]

   The primary judge took into account three matters each of which was material to her conclusion not to permit the children to be recalled. The first was that the applicant had raised the issue of the mother being responsible for the children fabricating evidence against him when he was arrested and shortly thereafter in the recorded interview with police. Those events occurred more than eight months before the pre-recorded evidence hearing at which the children gave evidence.

3. [34]

   Secondly, the judge raised an issue as to why there had been no application to recall the children between the date of the pre-recorded evidence on 1 April 2022 and the filing of the notice of motion in February 2023. The reason given was that previous defence counsel “became unavailable in September 2022” and replacement counsel was not briefed until October 2022. The judge noted that the same solicitor had acted for the applicant throughout and that there was “no explanation” as to why no earlier application was made under cl 87.

4. [35]

   Thirdly, the judge addressed the defence submissions as to why the failure to recall the children would cause difficulties at the trial. The first proposition was that the rule in Browne v Dunn may prevent the accused from pressing his defence as to the conduct of the mother in circumstances where that issue had not been raised in cross-examination of the children. The judge pointed out, however, that such a principle is generally not applicable against an accused in a criminal proceeding, referring to the discussion by the High Court in Hofer v The Queen. [17] These reasons were all relevant and significant.

5. [36]

   The case for the applicant was also addressed in a more qualified form than the rule in Browne v Dunn, namely that the jury would, in any event, be left with two distinct scenarios and may themselves wonder why the children were not asked about their mother influencing them. Because the applicant’s recorded interview would be before the jury, they would know that it had always been his case that the mother was responsible.

6. [37]

   On the hearing of the motion, the prosecutor did not oppose the application to recall the children and presented some arguments in support of the application. Although the fact that the prosecutor had adopted a different position in this Court was noted, it was not submitted that the primary judge was bound to grant leave because it was not opposed, nor that the Director was not entitled to defend the judge’s order in this Court. In both respects those positions should be accepted.

7. [38]

   In substance, the first matter raised by the prosecution before the primary judge was the difficulty for the jury to resolve the conflict between the witnesses. The primary judge was dismissive of this concern, stating that it could easily be dealt with in submissions. [18]

8. [39]

   The trial judge then addressed a further matter raised by the prosecutor, namely that it would be difficult to explain to the jury “what the asserted motive to lie is and what is relied upon by the accused at trial”. [19] The judge responded to this matter by referring to the fact that the accused did not have to prove any motive and that the jury would be given a “Jovanovic warning”. R v Jovanovic [20] dealt with the suggestion that a jury might ask itself why a complainant would make up, in the absence of any apparent motive for lying. Juries are generally warned not to assume that there is no undisclosed motive and that, even if they did not accept the accused’s suggested motive, it does not follow that the evidence given by the witness is truthful and reliable. In this case, the cross-examination of each child, and particularly the brother, suggested a motive to say bad things about the father so that they would not have to stay with him. That does not address the possibility that a different motive might be suggested to the mother, together with a willingness on her part to have the children fabricate complaints. It will be appropriate to return to this point shortly.

9. [40]

   The third matter raised by the prosecutor was the possibility that the applicant might not be allowed to give evidence of the asserted motive to lie, or to address the jury on that issue. The judge dismissed that as speculative and baseless: it was not raised on the proposed appeal. Nor was a final matter as to the supposed difficulty for a prosecutor cross-examining the applicant.

10. [41]

    Finally, the judge referred to the decision in Oldfield v R, [21] in which defence counsel had informed the jury that, through an oversight on his part, he did not put a proposition to a child witness and, rather than allow the trauma of recalling her, counsel conceded that she may have denied the proposition if it had been put to her. The primary judge suggested that this was “a fair way of dealing with it, rather than retraumatising two small children”.

11. [42]

    The applicant relied upon the second limb in par (b) of cl 87(3) (“otherwise in the interests of justice”) as if it were a freestanding basis for granting leave, having the same availability as par (a). That is, it simply involved a balancing exercise between harm to the children if they were to be recalled, against prejudice to the applicant if they were not.

12. [43]

    In my view that assumption should not be accepted. The structure of cl 87 suggests a different approach. It is important to construe the provision holistically. Subcl (1) establishes a qualified prohibition, namely that the witness who has given evidence at a pre-recorded evidence hearing “cannot give further evidence”. That prohibition may be avoided where the court gives leave. Subsection (2) provides for an application to be made by any party and subs (3) imposes a constraint on the grant of leave, if sought. Clause 87 does not in terms confer a power on the court to grant leave, but that should be inferred. That is, there is a discretionary power, not an obligation, to grant leave if the court is satisfied of one of the matters identified in subcl (3).

13. [44]

    The structure of subcl (3) is also important. In part it supports the conclusion as to the existence of a discretionary power. The use of the term “otherwise” in par (b) implies that satisfaction of par (a), according to its precise terms, may not be sufficient to warrant a grant of leave. It must be in the interests of justice to do so. Thus, although par (a) does not in terms reflect the need for an evaluative judgment, when cl 87 is read as a whole, such a judgment should be inferred, with the result that the court enjoys a discretionary power, and is not obliged to grant leave if satisfied as to par (a).

14. [45]

    A second material aspect of subcl (3) is the nature of par (a). It identifies a “matter” of which the party was not aware and could not reasonably have been aware at the time of the pre-recorded evidence hearing. If such a matter exists, procedural fairness suggests that, if further information has become available before the completion of the proceeding, the judge should have a power to permit the witness to give further evidence. The subclause does not purport to identify all circumstances in which it may be procedurally unfair for an absolute prohibition to operate, but it does suggest the kind of case in which the prohibition is lifted.

15. [46]

    It is clear that both the provisions in Pt 6 and in Sch 2 Pt 29 to the Criminal Procedure Act, dealing with the giving of evidence by vulnerable persons, seek to protect vulnerable persons from potential trauma, but, where necessary, a court is empowered to otherwise order, where satisfied that it is in the interests of justice for such a step to be taken. For example, s 306Y provides that the court may order that a vulnerable person must not give evidence by means of a recording by an investigating official, as otherwise provided in Pt 6, Div 3, but the court may “only make such an order if it is satisfied that it is not in the interests of justice for the vulnerable person’s evidence to be given by a recording”: s 306Y(2). A similar constrained power is provided in respect of evidence given by closed-circuit television: s 306ZB(5).

16. [47]

    Similarly, the structure of cl 87 is a prohibition on a witness giving further evidence, whether voluntarily or compulsorily, but subject to a discretionary power of the court to grant leave. The one circumstance identified as a criterion which may permit the grant of leave provides a basis for considering other proposed criteria. Further and importantly, the formulation that the court “must not give leave… unless” implies a limited conferral of power which is not consistent with a bare balancing of interests and prejudice. Consistently with the purpose of the division within which cl 87 falls, an important consideration in exercising the power is the dominant purpose of protecting child witnesses from the trauma of giving evidence, so far as it is reasonably possible to reduce that trauma. The use of a pre-recorded evidence hearing is seen to go part of the way, but even then is not to be repeated unless the interests of justice require it.

17. [48]

    In addressing an application under cl 87, two further factors are important. Because the clause reflects a concern that repeat hearings will potentially add to the child witness’ trauma, legal representatives appearing at such a hearing must be aware of the statutory policy not to provide further hearings. As with most witnesses, they should expect to have one bite at the cherry.

18. [49]

    Secondly, the present subcl (3)(a) provides a warning that any matter which is known to the applicant at the time of the hearing should be addressed if it is a matter which is sought to be relied on at the trial and should, where appropriate, be put to the child witness.

19. [50]

    Thirdly, as with any form of cross-examination on behalf of an accused, counsel will be obliged to make forensic decisions as to the course of the questioning, and the accused will be bound by counsel’s conduct.

20. [51]

    In the present case, there was no procedural unfairness in refusing a further hearing at which the children would be required to give further evidence. To the extent that it was a relevant “matter”, the allegation that the mother had sought to set the children up to fabricate evidence against the applicant, and had done so on previous occasions in a manner specified by the applicant, was expressly identified (and indeed repeated) in the course of his ERISP. Whether counsel, on instructions or otherwise, decided not to raise those issues with the children, is a matter about which the court cannot and should not speculate. That the evidence given by the children was untrue was expressly put to each of them. That it was untrue because either or both of them wished to avoid having to stay with the father was also put to them. There was every opportunity to put an alternative motive, namely that the mother had asked or proposed that they fabricate their evidence. The fact that the alternative explanation for giving false evidence was not put does not demonstrate any element of procedural unfairness.

21. [52]

    What may be tentatively inferred from the chronology of events was that fresh counsel coming into the matter took a different view of how the matter might best be defended. That may provide a possible basis for requiring the children to be recalled to give further evidence, but it is insubstantial.

22. [53]

    The primary judge was correct to refuse leave on either of two hypotheses. The first hypothesis must be that, if asked whether their mother persuaded them to fabricate evidence against the applicant, one or both would accept the suggestion. In circumstances where the brother conceded that he did not like staying with his father, but yet denied that he had lied about what his sister told him, such a possibility is remote. Similarly in circumstances where the complainant denied telling lies, the possibility is also remote. There having been every opportunity to put those questions at the first hearing, there was no warrant to retraumatise the children by a second proceeding in the hope that they would recant their denials.

23. [54]

    The alternative is that the children would deny the allegations, which seems probable. All that is then achieved is that the jury is not left to wonder why the allegations were not put. While I am not persuaded that an explanation of the kind given in Oldfield would necessarily resolve the problem, rather than giving rise to further speculation on the part of the jury, I am not satisfied that the prejudice which would arise for the applicant in such a case would be sufficient to warrant a further hearing.

24. [55]

    In my view, the interests of justice require a far more forceful case of prejudice than is raised by the applicant on either hypothesis.

25. [56]

    Further, as with a ruling on the admissibility of evidence, the rejection of the present application is by no means final in any legal sense. If circumstances arise at the trial which suggest that the issue should be revisited, there is no legal barrier to a further application being made.

26. [57]

    It follows from the foregoing consideration that, not only is s 5F not engaged, but if it were, and if leave were thought appropriate, the appeal should nevertheless be dismissed. However, if those conclusions were wrong, there is a further problem facing the applicant. That is illustrated by the failure of the applicant until virtually the end of the oral submissions in this Court to accept that conditions should be imposed on any grant of leave for a further hearing. Prior to that, counsel had argued in favour of an unrestricted right to cross-examine the children further. There was no suggestion that the court did not have power to condition a grant of leave to conduct further cross-examination.

27. [58]

    Although in written submissions, the applicant summarised seven matters which he had identified to the police, as set out in the ERISP, most were either matters involving the mother about which the children could have no knowledge or were the subject of unchallenged objective evidence, such as the fact that the allegations were made after the first time the children stayed with him for one week during the first school holidays after the making of the court order. Other matters could properly be put to the mother concerning her motivations. The one matter emphasised in the submissions was the alleged video call by the mother to the son in the course of which she told him to take the daughter’s clothes off, which he did, so that the mother could record it and have “evidence to wipe me off the kids”, as described by the applicant.

28. [59]

    The significance of this allegation was obscure. There was no evidence of the existence of any video-recording. It was not in any event evidence in relation to the offences that occurred, but only to establish that the mother enlisted her son in an attempt to embarrass the applicant. If the further hearing were to be restricted to questioning along that line, it would not warrant a grant of leave.

29. [60]

    The question proposed before the primary judge, and repeated in written submissions in this Court was as follows: [22]

30. [61]

    It is self-evident that the children could not be asked about the nature or stage of the family law proceedings, or about their mother’s motivation. Once these elements are removed, the significance of the proposed cross-examination of the children is substantially reduced. Furthermore, if, as submitted by counsel before the primary judge, the purpose was to foreclose a Browne v Dunn submission, for the reasons already indicated and correctly expressed by the primary judge, the concern was unnecessary.

Conclusion

1. [62]

   The application for leave to appeal should have been filed within 14 days of the ruling on 8 February 2023, [23] but was not. The applicant sought an extension of time to the date of filing, namely 8 March 2023. The extension was not opposed and should be granted.

2. [63]

   However, the application should be dismissed because s 5F was not engaged. If, contrary to that view it was engaged, and if leave were granted, the appeal should be dismissed on the merits.

3. [64]

   On either view, I propose the following orders:

   1. (1)

      Extend to 8 March 2023 the time within which to seek leave to appeal from the ruling of Traill DCJ on 8 February 2023, refusing an application for the complainant and her brother to give further evidence pursuant to Sch 2, cl 87 of the Criminal Procedure Act 1986 (NSW).

   2. (2)

      Dismiss the application for leave to appeal.

4. [65]

   WALTON J: I have had the advantage of reading the draft judgments of Basten AJA and Hamill J in this matter. I agree with the judgment of Basten AJA for the reasons given by his Honour and the orders proposed but would make some further brief observations as to the merits of the application before the Court in the event that the finding made by Basten AJA, with which I agree, as to the operation of s 5F of the Criminal Appeal Act 1912 (NSW) is found to be in error.

5. [66]

   The application for leave to appeal under s 5F in this matter is brought against a decision by the District Court of New South Wales to refuse leave under Sch 2, cl 87 of the Criminal Procedure Act 1986 (NSW) (“cl 87”) (“the Sentencing Act”) for two child witnesses (“FJJ” and “MLJ”) to give further pre-recorded evidence in relation to PJ’s trial for sexual offences against FJJ.

6. [67]

   The pre-recorded evidence of the children occurred on 1 April 2022, after which the children were excused and advised they would not be returning.

7. [68]

   Prior to the taking of that evidence, it was clear from the ERISP undertaken by the applicant that he wished to assert that the children’s mother had influenced the children in the evidence they had given, and in fact, there had been a prior occasion, in Family Court proceedings, in which she had sought to influence the evidence given by the children (as well as fabricating evidence against the applicant).

8. [69]

   Those propositions were not put to the children in cross-examination. Rather, a second hypothesis was suggested to FJJ and MLJ; that MLJ had put FJJ up to making the allegations. This was denied by both children.

9. [70]

   No part of the challenges facing counsel in conducting pre-recorded examinations of children in cases such as these may explain that omission. No other explanation has been provided.

10. [71]

    Some ten months later, on 2 February 2023, the applicant filed a Notice of Motion seeking leave under cl 87 of the Sentencing Act. The sole explanation for the delay in bringing that application was a change of counsel in September 2022. There was a further month after the refusal of the application under cl 87 until the filing of a Notice of Appeal. I agree with Basten AJA that these circumstances mitigate against the grant of leave.

11. [72]

    What is postulated by the applicant for leave under cl 87 is that FJJ, who made her complaint in July 2021 at 4 years of age, would now, at 6 years of age be recalled to give evidence some two years later, when in a later age group and after the passage of that amount of time. Upon the application for leave under cl 87, as contemplated by the applicant in the present proceedings, FJJ would be recalled with respect to questions relating to the alleged offending and the family dynamics at the time of the alleged offending, in the context of a combative family law dispute. This is plainly productive of the risk of significant further trauma to the child.

12. [73]

    In my view, and for the reasons given by Basten AJA, a far more forceful case of prejudice than was raised by the applicant would be required under these circumstances and under the hypotheses described by his Honour at [53] and [54] of his judgment.

13. [74]

    No House v King (1936) 55 CLR 499; [1936] HCA 40 error has been demonstrated in the decision of Traill DCJ to refuse leave under cl 87 of the Sentencing Act.

14. [75]

    HAMILL J: This is an application under s 5F of the Criminal Appeal Act 1912 (NSW), against the refusal of the District Court to make an order under cl 87 of Sch 2 of the Criminal Procedure Act 1986 (NSW) to grant leave for two child witnesses (FJJ and MLJ) to give further pre-recorded evidence, in relation to the applicant’s (PJ’s) trial for four sexual offences against his daughter FJJ. The applicant requires an extension of time in which to make the application.

15. [76]

    Prior to completing a draft of this judgment, I had the opportunity to read a draft of the judgment of the presiding Judge. I have reached a different conclusion as to the resolution of the application. There may be a little repetition of the factual and procedural details. However, the background to the application can be stated relatively briefly.

16. [77]

    Statutory provisions prohibit the publication of information leading to the identification of the children involved and I adopt the initials used by counsel to the appeal and counsel in the District Court.

Background

1. [78]

   FJJ and MLJ are, respectively, the daughter and son of PJ and his ex-wife (MD). FJJ was born in late August 2016 and MLJ was born in early July 2012 and were, accordingly, aged 4 and 8 at the relevant time. PJ and MD were embroiled in family law litigation for around 5 years leading up to the alleged offences. At the time the allegations emerged, there were Family Court orders whereby PJ had custody of the two children every second weekend and half of the school holidays. On 28 June 2021, the applicant had custody of the two children.

2. [79]

   The indictment presented against the applicant contains four offences, although the Prosecution Case Statement refers only to two offences. I assume that counts 1 and 3 on the indictment are the primary allegations, while counts 2 and 4 are alternative offences that may arise if the prosecution fails to establish penetration in respect of the primary offences. The very short particulars of the offences are:

   1. (1)

      29 June 2021 – while “assisting her with toileting” the applicant inserted his “pinkie finger in [FJJ’s] vagina”. This is count 1 on the indictment alleging sexual intercourse with a child under 10 years. Count 2 (on the indictment) is an offence of sexually touching a child under 10. As noted, this appears to be an alternative count although the indictment does not indicate this.

   2. (2)

      30 June 2021 – in similar circumstances, the applicant again inserted his pinkie into FJJ’s vagina. This is a second offence of sexual intercourse with a child under 10 years. It is referred to as count 2 in the Prosecution Case Statement but is count 3 on the indictment. Count 4 is a second offence of sexual touching, again presumably to be cast in the alternative.

3. [80]

   Both offences are charged between dates, namely 28 June 2021 to 4 July 2021, no doubt to allow for possible imprecision on the part of the child complainant and to encompass the period of the access visit that the children had with PJ. The prosecution case is that FJJ immediately complained to her brother after each incident and that MLJ confronted the applicant who said on both occasions, “I didn’t do nothing”. The children returned home on 4 July 2021 and FJJ complained to MD on 5 July 2021. Police became involved and both children were interviewed by the Joint Investigation Response Team (“JIRT”) on 5 July 2021.

4. [81]

   The applicant was interviewed by police on 8 July 2021 (the “ERISP”). He denied the allegations and suggested his ex-wife encouraged the children to make false sexual accusations against him. He said this was not the first time his ex-wife had done this or something similar. It will be necessary to return to the detail of that suggestion.

5. [82]

   The case was part of the Child Sexual Offence Evidence Pilot Scheme provided for by Sch 2 Pt 29 of the Criminal Procedure Act. A witness intermediary (or “children’s champion”) was appointed under cl 88 and there was a “ground rules hearing” on 25 March 2022. Pursuant to cls 84-85 the children’s evidence was taken in a “pre-recorded evidence hearing” conducted on 1 April 2022. Both children were cross-examined, within the rules and procedures provided for in such hearings, by counsel then appearing for the applicant.

6. [83]

   By notice of motion dated 2 February 2023, the applicant sought an order that “[l]eave be granted for the complainant FJJ and the witness MLF (brother of the complainant) to be recalled to give further evidence.” By that time, the applicant was represented by different counsel. The notice of motion was supported by an affidavit of the applicant’s solicitor, Ms Fard. The affidavit annexed other documents including, a parenting order made with consent under the Family Law Act 1975 (Cth) (annexure A) and the applicant’s ERISP (annexure C).

7. [84]

   The notice of motion came before Judge Traill on 8 February 2023. Written submissions were filed by counsel for both the applicant and the prosecution. The Prosecutor indicated in their written submissions “the Crown does not oppose the application”.

8. [85]

   The application was governed by the provision in cl 87 which provides:

9. [86]

   Both counsel engaged in a robust exchange with the trial Judge. Neither suggested that the provision in sub-cl (3)(a) was engaged. However, both the Prosecutor and defence counsel submitted that it was “otherwise in the interests of justice” that leave be given. The submissions for each party arose from the failure of counsel who appeared for the applicant at the pre-recorded evidence hearing, to put matters that were raised by the applicant in his ERISP.

10. [87]

    The trial Judge delivered her reasons ex tempore on 8 February 2023. Her Honour concluded (at p 15) that “[i]t is not in the interest of justice to recall the two very young children to have them further cross-examined” and resolved to “dismiss the defence notice of motion”.

11. [88]

    A notice of appeal was filed on 8 March 2023. There was a single ground of appeal in the following terms:

12. [89]

    Written submissions were filed by senior counsel for the applicant and counsel for the respondent. As was its entitlement, the respondent took a different approach on the appeal to that which was taken in the District Court. It argued the appeal was “incompetent” and the Court did not have jurisdiction to intervene under s 5F. Further, it submitted that the trial Judge’s decision was correct, and, in any event, there was no error of the kind that would entitle this Court to intervene in what the parties agreed was the exercise of discretion: House v The King (1936) 55 CLR 499; [1936] HCA 40.

13. [90]

    The appeal hearing took place on 8 May 2023. While the trial proceedings had been adjourned to accommodate the applicant’s proposed appeal, resolution of the dispute remains urgent given the delay in the case to this point and the desirability that, if the applicant succeeds, the further pre-recorded evidence hearing takes place as soon as possible.

Jurisdiction

1. [91]

   The respondent submitted the applicant’s proposed appeal was incompetent because the decision of Traill DCJ was not an interlocutory judgment or order. It was submitted the decision was a ruling on the admissibility of evidence or, alternatively, that it did not finally resolve any issue. The applicant submitted to the contrary.

2. [92]

   An evidentiary ruling is not amenable to an appeal under s 5F(3): see, for example, R v Steffan (1993) 30 NSWLR 633, R v Powch (1988) 14 NSWLR 136, DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 and Brown v R [2022] NSWCCA 121.

3. [93]

   The situation is less clear where the ruling concerns the manner in which a witness might give evidence: compare KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249 (a decision that a witness give evidence by audio visual link via a platform called Jabber), with SC v Rs (2020) 104 NSWLR 257; [2020] NSWCCA 314 (the appointment of witness intermediary for a child witness). As RA Hulme J said in AF v R [2015] NSWCCA 35 at [31]:

4. [94]

   R v F (2002) 129 A Crim R 126; [2002] NSWCCA 125 Wood CJ at CL at explained:

5. [95]

   The decision under review in the present case was not a ruling on evidence; rather it was a decision that the witnesses give no further evidence at all. Contrast might be made with the (hypothetical) situation that may have arisen if Judge Traill had decided the evidence sought to be introduced was not relevant or should be excluded pursuant to a provision such as s 294CB of the Criminal Procedure Act or fell foul of the tendency or credibility rules. The decision of the District Court disposed of a formal notice of motion seeking leave to recall the witnesses. While it may be theoretically possible to revisit the issue, it had the hallmarks of an order finally disposing that discrete issue. Senior counsel was correct when she submitted that it is difficult to envisage circumstances where the order will be revisited. While, the trial Judge said the issues could be raised with the applicant’s ex-wife, there was no suggestion that the refusal to grant leave might be re-considered depending on what evidence the mother gave. Further, to allow such a course would render inoperative the provision in cl 87(4) (requiring, “so far as practicable”, further evidence to be “given by pre-recording”). The dismissal of the notice of motion constituted a formal order refusing leave under cl 87(3)(b) and “amounted to a command that something … not [be] done.” While the decision did not rule out all of the evidence in the case of one of the parties (contra R v Bozatsis and Spanakakis (1997) 97 A Crim R 296), it eliminated the capacity of (both) parties to obtain evidence on a critical issue in the trial.

6. [96]

   The refusal of leave was an interlocutory judgment or order and this Court has jurisdiction under s 5F to entertain the application for leave to appeal.

Extension of time

1. [97]

   The applicant requires an extension of time. The applicant was required to file its appeal within 14 days of the judgment or order that it was appealing: Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(4). That judgment was delivered by Traill DCJ on 8 February 2023. The notice of appeal was not filed until 8 March 2023.

2. [98]

   However, the evidence tendered on appeal establishes that the written version of the judgment was not made available to the applicant’s lawyers until 22 February 2023. By that time, Ms Avenell SC of the Public Defenders Chambers had been briefed. Her submissions were finalised on 1 March 2023 and Ms Fard attempted to file the application along with the submissions on 2 March 2023. However, the filing was rejected due to some technical issue. The notice of appeal was filed along with Ms Avenell’s submissions six days later (including a weekend).

3. [99]

   The respondent did not oppose an extension of time in which to appeal and such an extension should be granted.

Matters raised by the applicant in the electronically recorded interview

1. [100]

   To understand the basis upon which the applicant sought leave under cl 87, it is necessary to consider relevant parts of his ERISP and the cross-examination undertaken by his then counsel at the pre-recorded evidence hearing.

2. [101]

   At the very outset of the interview with police, the applicant raised the issue of MD’s influence over the children and alleged that she had previously encouraged them to do sexualised things, calculated to influence the family law proceedings and deny the applicant access to his children:

3. [102]

   As can be seen, the investigating police sought to focus the applicant’s attention on the matter subject to the investigation. However, the applicant raised the issue again later in the interview, and the detail of what the applicant was saying became clearer:

4. [103]

   He returned to the issue once more:

5. [104]

   While there appeared to be some language issues at play, the applicant was asserting that there was a previous occasion where MD had sought to influence the children to behave in a sexualised way and that she did so to “get evidence” for the Family Court hearing, so that it might result in the applicant being denied access to the children. He asserted, “[n]ow, she’s doing the same thing again.”

6. [105]

   The written submissions of Ms Orman-Hales, counsel who appeared on the notice of motion and who was (and is) expected to appear at the trial, explained in the District Court:

7. [106]

   It appears to be the case, and senior counsel confirmed at the hearing of the appeal, that the applicant had made the allegation of the mother influencing the children before he was arrested and interviewed in relation to the current allegations.

Matters put and not put in the pre-recorded cross-examination

1. [107]

   As I have said, Ms Orman-Hales did not appear at the pre-recorded evidence hearing. Counsel who did appear did not ask either of the children about the issues raised in the applicant’s ERISP. It was not suggested that the mother may have influenced the children to make a false allegation. Nor was either FJJ or MLJ asked about the previous (alleged) occasion when the mother asked MLJ to “strip” FJJ so she could record it visually in the course of a video call.

2. [108]

   Counsel did raise an issue about whether MLJ may have influenced FJJ in making the complaint. For example, it was established that MLJ taught FJJ the term “tundu” which was the word she used in the complaint. It was also confirmed that MLJ was present when the complaint was made to the mother, although that was a matter that was already clear from the JIRT interview. Finally, after some considerable difficulty in formulating an appropriate question, FJJ was asked if MLJ helped her make up a story about the applicant touching her “atundu”:

3. [109]

   The difficulties exposed in the passage of transcript reproduced above was far from isolated. Counsel conducting examinations of children in cases such as these face significant challenges in balancing the interests of a fair trial against the need to ensure the child is treated appropriately and given the opportunity to present their evidence without confusion or trauma.

4. [110]

   FJJ was also asked if she was lying or telling the truth about the allegation, and she said she was telling the truth. This passage is set out by Basten AJA at [9].

5. [111]

   Similar questions were directed to MLJ but, again, there was no questioning about whether MD may have influenced the children in making the allegations or whether the earlier (“stripping”) incident had occurred. Basten AJA has set out the salient features of the examination of MLJ at [12].

6. [112]

   These were significant omissions in the cross-examination of the central witnesses. There is no evidence as to whether the omissions were deliberate or whether counsel simply erred in failing to address those propositions. It is difficult to imagine that it was deliberate, let alone a sound forensic decision, in light of the prominence of the matter in the applicant’s recorded interview and the uncontested fact that the allegations arose in the midst of a hotly contested family law proceeding. Basten AJA is correct to say at [51] that neither the trial Judge nor this Court should speculate as to reason counsel failed to address these matters but, with genuine respect, his Honour was wrong to suggest (or “tentatively [infer]”) that “fresh counsel coming into the matter took a different view of how the matter might best be defended” and the general rule that a litigant is bound by their barrister’s conduct was such as to deny the application under cl 87 its genuine force.

The application to recall the witnesses

1. [113]

   Basten AJA has summarised the reasons of the trial Judge and I will not repeat his Honour’s analysis. However, it is also appropriate to consider the submissions made by the Prosecutor at first instance. As I have said, it was entirely open to the respondent to take a different approach on the appeal and the submissions made by Ms Kumar were cogent and persuasive and gave the Court the opportunity to hear from a “contradictor”. However, the submissions made by the Prosecutor at trial were persuasive albeit there may have been an undue emphasis on the “rule in Browne v Dunn”. In written submissions, the Prosecutor submitted:

2. [114]

   During what reads in the transcript as a tense exchange, the Prosecutor maintained his position. For example:

The arguments on appeal

1. [115]

   It is unnecessary to restate the arguments of each side on the hearing of the appeal. However, a couple of things should be noted.

2. [116]

   In this Court, the applicant placed some reliance on the decision of WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 (“WX v R”). The situations are somewhat analogous, but the terms of the legislation are different, and the purpose is also different. It might be thought that the “starting point” – that witnesses are not generally to be recalled – is stronger under the cl 87. However, the rule or starting point is not absolute and the inclusion of a general exception arising when re-calling witnesses being “otherwise in the interests of justice”, is common to both pieces of legislation. As in the legislation considered in WX v R at [42]:

3. [117]

   It should also be noted that counsel for the respondent in this Court said, contrary to the submissions of the Prosecutor in the District Court, that no objection would be taken to the applicant’s assertions in the ERISP or, if it is adduced by agreement, anything he said that was recorded in the body worn video. In the same vein, it was submitted that the prosecution “can (and will) make no complaint about the lack of cross examination to seek a remedy for the consequences of the rule [in Browne v Dunn]”. The respondent submitted, and I agree, that the reliance (by both parties below) on the rule in Browne v Dunn (1893) 6 R 67 is misconceived.

Resolution

1. [118]

   I agree with Basten AJA at [54] that one of the trial Judge’s proposed solutions – which was to adopt the approach taken in the case of Oldfield v The Queen (2006) 163 A Crim R 242; [2006] NSWCCA 219 (“Oldfield”)– could not cure the problem. The situation in Oldfield was quite different. In that case, the Prosecutor did take advantage of defence counsel’s failure to put certain matters. It is true, as the trial Judge in this case said, that defence counsel was permitted to make a statement to the jury to the effect that they had made a mistake and neglected to put relevant propositions to the complainant. Counsel also said to the jury that had the question been put, the complainant “would have” denied the proposition. The trial Judge in this case suggested the following solution:

2. [119]

   I accept the applicant’s submission that this solution was “no[t] desirable” or “possible” for the applicant to take. It would be unfair to require him to make such a concession. It is simply not known what the witnesses would say if asked questions about the role their mother played or whether there was a previous incident as described by the applicant when interviewed by police. To suggest the witness “may” or “would” have denied those propositions was purely speculative.

3. [120]

   Another solution contemplated by the trial Judge, which arose on the submissions of the parties in the District Court, was based on the fundamental proposition that an accused person bears no onus to establish a motive in a complainant to lie.

4. [121]

   In the course of the argument, and following the case being raised in the Prosecutor’s written submissions, the primary Judge made a number of references to the case of R v Jovanovic (1997) 42 NSWLR 520 (“Jovanovic”). Her Honour contemplated that any prejudice could be cured by a direction that there was no onus on an accused person to establish that an important witness – or a complainant – had a motive to fabricate their evidence (or, relevantly here, that they were influenced by another person in giving evidence against the accused). Jovanovic was a case about directions. It stressed the need for proper directions calculated to ensure that the jury understands that a complainant’s “account gains no legitimate credibility from the absence of evidence of motive”: Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 at [9] (“Palmer”) (Brennan CJ, Gaudron and Gummow JJ).

5. [122]

   The kind of direction contemplated by Sperling J (in dissent) can be seen in Jovanovic at 542:

6. [123]

   Sperling J was in the minority in the outcome of Jovanovic. However, the majority judgments did not gainsay the appropriateness of such a direction or the legal and forensic reasons it will usually be necessary. Further, and importantly in the context of the issue faced by Traill DCJ in this case, the judgments in Jovanovic emphasised the importance of evidence led to establish a motive in a complainant to give evidence implicating the accused. For example, Cole JA said at 532:

7. [124]

   By focusing on the necessity or appropriateness of a “Jovanovic direction” Traill DCJ was side-tracked from the issue upon which the submissions of both counsels were focused, namely the importance of the evidence of a possible motive to fabricate the evidence and the possible influence of the mother on the children. This was raised squarely by the applicant in his interactions with the police and in the Family Court proceedings. He sought to rely on that evidence at the trial. Further, the Prosecutor sought to rebut it by having the witnesses address the issue.

8. [125]

   The preoccupation with the “Jovanovic warning” also permeated the reasons for judgment. Her Honour mentioned it twice in her judgment:

9. [126]

   In Palmer Brennan CJ, Gaudron and Gummow JJ emphasised (at 6-7 [6]) the potential importance of evidence going to the motive of a prosecutor or complainant to lie:

10. [127]

    This was not a case where the applicant sought to simply rely on the onus and standard of proof to contend that he was not required to establish a motive in the complainant and her brother to lie. He sought to run a positive case on that issue. Not only did he seek to put the suggestion that the mother influenced the children, but he also sought to raise an instance of similar conduct in the past. It is no answer, as the trial Judge suggested, that counsel could put the suggested motive to his ex-wife. Nor can it be assumed that the children will deny the general allegation or not accept that the earlier incident occurred.

11. [128]

    Further, as the Prosecutor attempted to explain to the trial Judge, the prosecution sought to explore the issue with the children. There was potential unfairness to the Prosecutor if it was unable to obtain, and rely on, the children’s denials, if that was their response to the suggestion. It is accepted the respondent now takes a different approach, but the submissions made at first instance were cogent and persuasive. Reliance was also placed on the remarks of the High Court in Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 (“Hofer”). While directions may prevent a jury from using counsel’s failure to comply with the rule in Browne v Dunn, Kiefel CJ and Keane and Gleeson JJ in Hofer stated at [27]:

12. [129]

    I am satisfied that the applicant has established that her Honour failed to consider a relevant consideration (the importance of the evidence to the applicant’s case and the expressed desire of the Prosecutor to rebut that evidence) and did so by reference to an extraneous consideration (the availability of a Jovanovic direction irrespective of whether the motive was put to the complainant and the witness). This constituted the kind of error described in House v The King (1936) 55 CLR 499; [1936] HCA 40.

13. [130]

    None of the foregoing should be seen to derogate from the important observations of both the trial Judge and Basten AJA concerning the purpose of the pilot scheme in protecting children from being required to give evidence more than once. However, cl 87 provides two exceptions. The first did not apply – the matter not raised in cross-examination must have been known to counsel who conducted the examination. However, reading cl 87 holistically, sub-cl 87(3)(b) contemplates situations where the “interests of justice” will require leave to be granted in spite of the matters under debate being known to counsel who conducted the pre-recorded examination. The section serves two purposes. One is to protect child witnesses from trauma. The other is to preserve the right of an accused person to a fair trial. So much is clear from the generality of the provision and confirmed by a single part of the second reading speech when the Attorney General said, “the bill contains important safeguards for the rights of an accused to a fair trial”. [24] While the Attorney continued to speak specifically of disclosure, it is clear that the new procedures are not calculated to deny the most fundamental rights of a citizen to a fair trial.

14. [131]

    I should also indicate that I disagree with the suggestion of Basten AJA at [57] that the applicant, at any stage, contended there should be an “unrestricted right to cross-examine the children further”. The orders sought were cast in general terms, but the arguments were focused and restricted. The application in the District Court and the submissions made on appeal were clearly and always directed towards, and based on, the limited matters raised by the applicant in his ERISP. If the children are recalled to give evidence, there is no doubt that responsible counsel, and the trial Judge, would limit the examination accordingly. The orders I propose reflect this.

Finality and miscarriage

1. [132]

   Since circulating a draft of this judgment, I have read the judgments of Walton J concurring with the orders proposed by Basten AJA. The publication of this judgment disposes of the complaints made of Judge Traill’s decision of 8 February 2023. However, as I understand it, the judgment will not prevent the applicant, in the event that he is found guilty, raising similar factual matters to contend that a miscarriage of justice occurred at his trial. Much will turn on the approach taken by the Prosecutor at that trial (noting the position taken in this Court) and the content of any directions given by the trial judge to overcome any potential prejudice. Nor does this decision prevent a further application being made for the witnesses to be recalled, although I acknowledge, given the force of my colleagues’ judgments and what I have said in dissent, it is difficult to envisage circumstances where such an application may arise.

Orders

1. [133]

   I would make the following orders:

   1. (1)

      Extend time in which to appeal.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Allow the appeal.

   4. (4)

      Quash the order made in the District Court and in lieu thereof grant leave under Sch 2 cl 87 of the Criminal Procedure Act 1986 (NSW) for the witnesses known as FJJ and MLJ to give further evidence, such evidence is to be limited to the matters raised by the applicant in his recorded interview with police at pp 99, 51-57, 185-195 and 284-286.