The Queen v Manager [2006] NTCCA 21

PARTIES: THE QUEEN

v

MANAGER

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: RESERVATION OF A POINT OF LAW PURSUANT TO SECTION 408 OF THE CRIMINAL CODE

FILE NO: 20606571

DELIVERED: 9 October 2006

HEARING DATES: 22 September 2006

JUDGMENT OF: MARTIN (BR) CJ, MILDREN & THOMAS JJ

CATCHWORDS:

CRIMINAL LAW
Reservation of points of law – interpretation of s 21B of the Evidence Act – options for presentation of evidence of children in sexual assault cases.

Criminal Code (NT), s 192; Evidence Act (NT), s 16, s 21A, s 21B, s 21D, s 26E and s 26L; Evidence Reform (Children and Sexual Offences) Act 2004 (NT); Sexual Offences (Evidence and Procedure) Act (NT), s 3A and s 5; Justices Act (NT), s 100A(2), s 105AA and s 105B(2A); Interpretation Act (NT), s 62A.

Mills v Meeking (1990) 169 CLR 214, considered.
R v Wojtowicz (2005) 148 NTR 24, followed.
R v Joyce (2005) 15 NTLR 134, partly overruled.

REPRESENTATION:

Counsel:
Applicant: J Tippett QC
Respondent: R Coates and E Armitage

Solicitors:
Applicant: Maleys Barristers and Solicitors
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: A
Judgment ID Number: Mar0623
Number of pages: 23

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Manager [2006] NTCCA 21
No. 20606571

BETWEEN:

THE QUEEN
Respondent

AND:

MANAGER
Applicant

CORAM: MARTIN (BR) CJ, MILDREN AND THOMAS JJ

REASONS FOR JUDGMENT

(Delivered 9 October 2006)

Introduction

[1] This is a reservation of points of law arising out of the presentation of Mr Manager (“the applicant”) for trial upon an indictment charging him with committing two sexual offences against a child. In issue is the operation of provisions in the Evidence Act (“the Act”) enacted in 2004 as part of a package of evidentiary reforms introduced by the Evidence Reform (Children and Sexual Offences) Act 2004 (the 2004 amendments”).

[2] At trial the Crown proposes to lead evidence from two children, namely, the alleged victim and her brother. Both children were interviewed by police within a few days of the events that are the subject of the charges. Those interviews were recorded by audio-visual means. At a special hearing prior to the empanelling of the jury, the Crown sought to play the video recordings of the interviews as the evidence-in-chief of the children, supplemented by a small amount of oral evidence led by the prosecutor. The children would then be cross-examined. The Crown proposed to play video recordings of the proceedings at the special hearing as the evidence of the children before the jury. In substance, as evidence in chief the jury would see the video recordings of the police interviews followed by video recordings of the children being cross-examined at the special hearing.

Questions reserved

[3] The questions reserved for the opinion of this Court concern the proper interpretation of s 21B of the Act. The particular questions reserved are as follows:

“(1) Does s 21B of the Evidence Act enable the prosecution to present the audio visually recorded interviews of [the complainant] and [her brother] by police as the evidence in chief of the two children at the special hearing under s 21B(4) of the Evidence Act?

(2) If yes to question 1, can [the complainant] and [her brother] give additional evidence in examination in chief at the special hearing under s 21B(4) of the Evidence Act?

(3) If the Crown elects to proceed under s 21B(2)(b) of the Evidence Act, do s 21B(2)(b) and s 21B(4) of the Evidence Act require the whole of the evidence of [the complainant] and [her brother] (including the examination in chief) to be given in person and recorded at a special hearing under s 21B(4) of the Evidence Act?

(4) Does s 21B of the Evidence Act give the Crown two discreet and mutually exclusive options for presenting the evidence of a child at the trial of an accused person, namely –

(a) option 1 – under s 21B(2)(a) of the Evidence Act the examination-in-chief of a child may be pre-recorded by video-tape or other audio-visual means by the Crown and given as evidence of the child at the trial of an accused person and if pre-recorded evidence is given at the trial, the child must be available at the trial for cross-examination by counsel for the accused if required, or

(b) option 2 – under s 21B(2)(b) of the Evidence Act the whole of the evidence of a child may be given at the trial of an accused person by video-tape or other audio-visual means and if the whole of the evidence of a child is to be given by video-tape or other audio-visual means then under s 21B(4) of the Evidence Act the whole of the evidence of the child must be given and recorded at a special hearing of the court?”

Statutory scheme

[4] Prior to the 2004 amendments, limited protection was provided for witnesses who the Legislature regarded as “vulnerable” and deserving of special measures in connection with the giving of evidence. A “vulnerable witness” was defined in s 21A of the Act as meaning:

“(a) a witness who is under 16 years of age;

(b) a witness who suffers from an intellectual disability;

(c) a witness who is the alleged victim of a sexual offence to which the proceedings relate; or

(d) a witness who is, in the opinion of the Court, under a special disability because of the circumstances of the case or the circumstances of the witness.”

[5] Section 21A of the Act provided for the giving of evidence by vulnerable witnesses from a place outside the courtroom or in the courtroom, but separated from the accused by way of a screen or partition. Such a witness was entitled to be accompanied by a relative, friend or other appropriate person. Section 5 of the Sexual Offences (Evidence and Procedure) Act directed that an unrepresented accused person was not entitled to cross-examine the complainant directly. The operation of these provisions was not affected by the 2004 amendments. However, unlike a number of jurisdictions in Australia, a vulnerable witness could be required to give evidence at a preliminary examination without any form of justification such as special reasons being demonstrated.

[6] When introducing the 2004 amendments in the Second Reading Speech, the Attorney-General identified the primary purpose of the Bill in the following terms:

“The purpose of this Bill is to reduce the trauma experienced by child witnesses and other vulnerable witnesses such as adults with intellectual disability in criminal proceedings for sexual offences, and improve the quality of evidence from those witnesses in criminal proceedings.”

[7] Irrespective of the statement by the Attorney-General, it is readily apparent from a consideration of the reform package in its entirety that a primary purpose of the package was to offer increased protection for children and other vulnerable witnesses: R v Wojtowicz (2005) 148 NTR 24. The reforms include amendments to the Justices Act to provide that evidence of children at preliminary examinations in connection with indictable sexual offences must be given by written or recorded statement, and that such witnesses need not attend the preliminary examination and cannot be cross-examined: s 105AA. The recorded statement cannot be admitted as evidence unless it has been made as a statutory declaration under the Oaths Act and complies with the requirements of that Act: s 105B(2A). For the purposes of the Justices Act, a “recorded statement” is defined as meaning “a statement recorded on audio-tape, video-tape or other audio-visual means”: s 100A(2). These amendments to the Justices Act apply only to children and not to other witnesses falling within the definition of “vulnerable witness”.

[8] Amendments were made to the Sexual Offences (Evidence and Procedure) Act introducing time limits in respect of prosecutions for sexual offences both summarily and on indictment. A summary trial or preliminary examination in respect of a sexual offence is to be commenced within three months of the matter being first mentioned in court. A trial on indictment for a sexual offence must be commenced within three months of an accused being committed for trial. Section 3A(4) empowers the court to grant extensions of time.

[9] The 2004 amendments introduced specific principles to be applied by the court in connection with child witnesses. Section 21D of the Act now provides:

“21D. Principles in relation to child witnesses

(1) It is the intention of the Legislative Assembly that, as children tend to be vulnerable in dealings with persons in authority (including courts and lawyers), child witnesses be given the benefit of special measures.

(2) If a witness is a child, the Court must have regard to the following principles:

(a) the Court must take measures to limit, to the greatest extent practicable, the distress or trauma suffered (or likely to be suffered) by the child when giving evidence;

(b) the child must be treated with dignity, respect and compassion;

(c) the child must not be intimidated when giving evidence;

(d) proceedings in which a child is a witness should be resolved as quickly as possible.”

[10] Prior to the 2004 amendments, sections 16 and 21B of the Act empowered the court to disallow scandalous and insulting questions and, in respect of a witness under the age of 16 years, to disallow any question that was confusing, misleading or phrased in inappropriate language. The extent of that protection was enlarged by the enactment of a replacement s 16 which includes a direction that in determining whether to disallow a question asked of a child, the court must have regard to the principles set out in s 21D.

[11] As mentioned, prior to the 2004 amendments a “vulnerable witness” included a witness who was under the age of 16 years. The effect of the amendments was to raise the age by two years. For the purposes of the Act, a vulnerable witness who is a “child” is now defined as meaning a person who is under 18 years of age.

[12] It is in the context of the 2004 reform package and the provisions to which we have referred that the amendments concerning the pre-recording of evidence of specified vulnerable witnesses are to be construed. The primary section under consideration is s 21B of the Act:

“21B. Pre-recorded evidence of certain vulnerable witnesses

(1) This section relates to the following offences:

(a) a sexual offence;

(b) an offence against section 177, 181, 184, 186, 186B, 186C, 188 or 193 of the Criminal Code.

(2) In a proceeding in relation to an offence, at the election of the prosecution –

(a) the examination-in-chief of a child or a person who suffers from an intellectual disability may be pre-recorded and given by video-tape or other audio-visual means; or

(b) the whole of the evidence of a child or a person who suffers from an intellectual disability (including cross-examination and re-examination) may be given by video-tape or other audio-visual means.

(3) If pre-recorded evidence is given under subsection (2)(a) –

(a) the witness must be available for cross-examination if required (except for a child witness in a preliminary investigation under Part V, Division 1 of the Justices Act);

(b) the Court may rule as inadmissible the whole or any part of the evidence given in the same manner as if the evidence was given orally; and

(c) the Court may make any other orders as it thinks fit to facilitate the giving of the evidence, including directions for the possession, playing, erasing or editing of the recorded evidence.

(4) If evidence is given by video-tape or other means under subsection (2)(b) –

(a) the whole of the evidence must be given and recorded at a special hearing of the Court;

(b) the defendant must be present at the special hearing but not in the same room as the witness;

(c) the Court may rule as inadmissible the whole or any part of the evidence given in the same manner as if the evidence was given orally; and

(d) the Court may make any other orders as it thinks fit to facilitate the giving of the evidence, including directions for the procedure of recording and the possession, playing, erasing or editing of the recorded evidence.

(5) Evidence given in accordance with this section is of the same effect as evidence given orally.”

[13] For the purposes of s 21B(2), “proceeding” is defined in s 4 of the Act in the following terms:

“‘Legal proceeding’ or ‘proceeding’ includes any action, trial, inquiry, cause or matter, whether civil or criminal, in which evidence is or may be given, and includes an arbitration.”

[14] A number of points should be noted:

• The procedures envisaged by s 21B do not apply to all persons who might come within the definition of “vulnerable witness”. Section 21B is concerned only with the evidence of a child or a person who suffers from an intellectual disability. In particular, s 21B does not apply to a witness who is not a child or does not suffer from intellectual disability, but is a witness who, in the opinion of the court, is under a special disability because of the circumstances of the case or the circumstances of the witnesses.

• Section 21B is not limited to cases in which the witness is giving evidence in connection with a sexual offence. It also applies to evidence given in relation to offences against any of the sections specified in s 21B(1)(b) which include, for example, the offence of common assault contrary to s 188 of the Criminal Code.

• Section 21B applies regardless of whether the evidence is given in the Court of Summary Jurisdiction or the Supreme Court. As mentioned, if the evidence is given in a preliminary examination, a witness who is a child cannot be called to give oral evidence, but an adult witness suffering from an intellectual disability can be required to give oral evidence.

• In recent years it has been recognised that, in respect of children and other “vulnerable” witnesses, the traditional procedure of witnesses giving evidence in court in the presence of the person accused of committing a crime is unsatisfactory. Legislatures in all Australian jurisdictions have responded by developing alternative procedures which began with providing witnesses perceived as vulnerable with options such as giving evidence at a place remote from the courtroom. Alternatively, the witness could give evidence in the courtroom from a position visible by the Judge and jury, but separated visually from the accused by way of an appropriate screen or partition. In the Northern Territory these options are at the election of the witness: s 21A(2). The Court retains a power to disallow any or all of these options if it is not in the interests of justice: s 21(2A).

• Section 21B is an extension of alternative procedures, but only in respect of children or witnesses suffering from an intellectual disability. This extension is superimposed upon procedures existing before the 2004 amendments and the additional alternatives can be adopted at the election of “the prosecution” rather than the witness: s 21B(2).

• Two options for the giving of evidence at trial are provided by s 21B:

(i) First, the “examination-in-chief” may be “pre-recorded” and given by video-tape or other audio-visual means: s 21B(2)(a) (“the first option”). If this procedure is elected, in other than a preliminary examination the witness must be available for cross-examination if required: s 21B(3)(a).

(ii) Alternatively, the “whole” of the evidence of the witness, including cross-examination and re-examination, may be given by video-tape or other audio-visual means: s 21B(2)(b) (“the second option”). If this procedure is elected, “the whole of the evidence must be given and recorded at a special hearing of the Court” and the accused must be present at the special hearing, but not in the same room as the witness: s 21B(4)(a) and (b).

(iii) Whichever option is elected, the Court may rule any part or the whole of the recorded evidence inadmissible in the same manner as if the evidence was given orally and may make such orders as it thinks fit to facilitate the giving of the evidence, including directions for the possession, playing, erasing or editing of the recorded evidence.

Principal contentions

[15] The questions reserved are primarily concerned with the procedure to be followed at a special hearing when the prosecution has elected the second option of presenting the whole of the child’s evidence at trial by video-tape pursuant to s 21B(2)(b). The Crown submitted that at the special hearing the Crown can present, as the examination-in-chief, a video-recording of a statement taken by police. The applicant contended that it is impermissible to tender a recorded statement of the witness as examination-in-chief because if the second option is elected, s 21B(4)(a) directs that the “whole” of the evidence of the witness must be given and recorded at a special hearing. In addition, counsel for the applicant urged that even if the Crown elected the first option under s 21B(2)(a) which authorises the pre-recording of “examination-in-chief”, a pre-recorded statement taken by police does not qualify as pre-recording of “examination-in-chief”. On this view the Legislature has chosen to use the words “examination-in-chief” which possess a well recognised meaning. The Legislature must have intended to authorise a pre-recording of a traditional question and answer examination-in-chief rather than the pre-recording of a statement taken by police or any other person.

Construction of Section 21B

[16] The starting point for the construction of s 21B is the ordinary and natural meaning of the words in the context in which they appear. In addition careful regard must be had to the purposes of the statutory scheme: s 62A of the Interpretation Act. However, s 62A does not permit the Court to adopt an interpretation which is inconsistent with the wording used by the draftsman: Mills v Meeking (1990) 169 CLR 214 per Dawson J at 235.

[17] At the heart of the questions reserved is whether the alternative procedures authorised by s 21B(2) are two discreet and mutually exclusive options, or whether the prosecution can elect the second option and use in the special hearing the procedure found in the first option of presenting a pre-recording as the examination-in-chief.

[18] In considering this question, it is necessary to have regard to the circumstances in which the options may be elected by the prosecution. They are options to be elected in a “proceeding” “in relation to” a sexual offence or an offence specified in s 21B(1)(B). Leaving aside whether the options exist when a special hearing is held, the prosecution may make an election as to the manner in which the evidence will be given at trial. Either the examination-in-chief is pre-recorded and given at trial by video-tape, in which event the witness must be available for cross-examination in the presence of the jury, or the whole of the evidence is given at trial by video-tape in which event the recording of the whole of the evidence occurs at a special hearing at which the “whole” of the evidence is “given” in the absence of the jury. The choice given to the prosecution is to present at trial in an audio-visual recording either the examination-in-chief or the whole of the witness’s evidence. As a matter of practicality, and as a matter of plain language, a third option does not exist. In our opinion it follows that for the purposes of the trial, s 21B gives the prosecution two discreet and mutually exclusive options for presenting the evidence.

Option 1 – Section 21B(2)(a)

[19] Before considering questions (1) – (3) which concern the procedure at a special hearing following election of the second option, it is appropriate to consider the procedure authorised by the first option pursuant to s 21B(2)(a). This option involves the pre-recording of examination-in-chief and the giving at trial of only the examination-in-chief by means of a video-tape of the pre-recorded evidence. Although the procedure authorised by s 21B(2)(a) is not the subject of a question reserved, submissions were directed to this question and the issues raised require resolution by this Court.

[20] Section 21B(2)(a) plainly contemplates that a pre-recorded “examination-in-chief” is to be given at trial by video-tape or other audio-visual means. As we have said, counsel for the applicant contended that the first option requires that when the examination-in-chief is being pre-recorded, it must be given in the usual manner applicable to court proceedings, namely, with the witness on oath answering questions in the presence of a judicial officer. Counsel for the applicant pointed out that the Legislature chose to use the technical term “examination-in-chief” and not to authorise the admission of a pre-recorded “statement” taken by a police officer or another person. This, said counsel, was a deliberate choice and stands in contrast to the provision in the Justices Act which specifically provides for the admission of a written or recorded “statement” at the preliminary examination. In response, the Crown submitted that the obvious purpose of s 21B(2)(a) is to authorise the tendering at trial of a pre-recorded statement taken from the witness by police or another person.

[21] Counsel for the applicant also referred to s 26E of the Act which provides for the admission in proceedings relating to a sexual offence of a child’s statement to another person as evidence of the facts in issue. The admission of such a statement for that purpose is specifically recognised as an exception to the rule against hearsay evidence. Section 26E is in the following terms:

“26E.Exception to rule against hearsay evidence

(1) In a proceeding in relation to a sexual offence, as an exception to the rule against hearsay evidence, the Court may admit evidence of a child's statement to another person as evidence of the facts in issue if the Court considers the evidence is of sufficient probative value as to justify its admission.

(2) In a preliminary examination under Part V, Division 1 of the Justices Act, the child whose evidence is admitted under subsection (1) cannot be cross-examined in relation to the statement.

(3) An accused person cannot be convicted solely on the basis of hearsay evidence admitted under subsection (1)”

[22] Section 26E applies only to a statement by a child in relation to a sexual offence. It does not apply to a statement by a witness suffering from an intellectual disability. Nor does it apply to statements in proceedings in relation to offences other than sexual offences such as those specified in s 21B(1)(b).

[23] It is unnecessary to canvass the criteria for admission of a statement pursuant to s 26E. They are discussed in R v Joyce (2005) 15 NTLR 134 and Wojtowicz. For present purposes, counsel for the applicant highlighted that if the Crown submission is accepted, a recorded statement to police may not qualify for admission as an exception to the rule against hearsay evidence pursuant to s 26E, yet it could be admitted pursuant to s 21B(2)(a) as the examination-in-chief of the child. Counsel urged that this is an anomaly which cannot have intended by the Legislature.

[24] In a number of respects the wording of the provisions is less than satisfactory. In particular, guidance is lacking as to what is meant by pre-recording the “examination-in-chief”. However, there are a number of difficulties with the construction advanced by the applicant.

[25] While s 21B(2)(a) authorises the pre-recording of the examination-in-chief, unlike subs (4) which provides for a special hearing if the second option is elected, there is no provision setting out a procedure to be followed in connection with the pre-recording required to implement the first option. Put simply, the Act does not authorise a court to hold a hearing for the purposes of recording the examination-in-chief to be used in the trial. The Legislature having specifically established the procedure of recording evidence at a special hearing if the second option is elected, the absence of provision establishing a pre-recording procedure when the first option is elected suggests that the Legislature did not intend that the court should be involved in the pre-recording of the examination-in-chief.

[26] Counsel for the applicant suggested that s 26L of the Act was the source of a power residing in the court to conduct a pre-recording hearing when the prosecution elects the first option. Section 26L is as follows:

“26L. Determination of admissibility before jury empanelled
A court dealing with a matter on indictment may, if it thinks fit, hear and determine, before the jury is empanelled, any question relating to the admissibility of evidence and any question of law affecting the conduct of the trial.”

[27] Section 26L is aimed at enabling a Judge to deal with preliminary issues of admissibility or questions of law affecting the conduct of the trial prior to the empanelment of the jury. It is a practical provision designed to avoid the requirement that a jury be empanelled, but be sent away while questions of admissibility and other issues concerning the conduct of the trial are resolved. Section 26L does not authorise the court to hear and record the “evidence-in-chief” of a witness prior to the empanelling of the jury. The recording of the “evidence-in-chief” is not a question “relating to the admissibility of evidence”. Nor is it “hearing and determining” a “question of law affecting the conduct of the trial”. In our opinion s 26L is not a source of power to pre-record the “evidence-in-chief” for the purposes of s 21B(2)(a).

[28] Secondly, having regard to s 21B in its entirely, it is apparent that the Legislature contemplated that if the first option is elected an accused would not be present during the pre-recording of the examination-in-chief. If the first option is elected, subs (3)(a) provides that the witness must be available for cross-examination. There is no mention of the accused being present at the pre-recording. By way of contrast, if the second option of the whole of the evidence being given by video-tape is elected, subs (4) not only provides for the evidence to be given and recorded at a special hearing, it specifically directs that the accused must be present at the special hearing. If the Legislature had intended that a pre-recording for the first option pursuant to s 21B(2)(a) occur as an examination-in-chief in the usual way before a judicial officer, it would be surprising if the Legislature did not provide for the presence of the accused.

[29] Finally, the powers of the court to make orders in connection with the alternative procedures are different. Whichever option is elected, the court is given powers to make orders facilitating the giving of evidence: s 21B(3)(c) and (4)(d). With one significant exception, the wording of these sub-sections is identical. If the second option under s 21B(2)(b) is elected thereby requiring the conduct of a special hearing, subs (4)(d) empowers the court to give directions for the “procedure of recording” the recorded evidence at the special hearing. Should the first option be elected, however, there is no mention in subs (3)(c) of giving directions for the procedure of recording the pre-recorded “examination-in-chief”. This is a notable omission. It is a clear indication of the intention of the Legislature that when the first option is elected the court has no role in connection with the pre-recording of the “examination-in-chief”.

[30] Section 21B(2)(a) is poorly worded and lacking in specific direction found in similar legislation in other jurisdictions. Notwithstanding those deficiencies, in our opinion a proper construction requires the conclusion that if the prosecution elects the first option, the Legislature intended to authorise the admission at trial, as the examination-in-chief, of a pre-recorded statement of the witness or interview with the witness taken by the police or some other person. If this option is chosen, we see no reason why the prosecution could not supplement the recorded evidence with oral evidence led at trial.

[31] As the circumstances of criminal investigations in the Northern Territory stood at the time of the introduction of the 2004 amendments, it might ordinarily be expected that the pre-recorded statement to be used as the examination-in-chief would be taken by a police officer. Usually, that pre-recorded statement will be the statement tendered at the preliminary examination. However, the Legislature has not restricted the operation of s 21B(2)(a) in that way. Similarly, the Justices Act does not require that a recorded statement tendered as a child’s evidence at a preliminary examination be taken or recorded by a police officer. In this context an accused is protected from the use of a statement taken in circumstances rendering the admission of the statement unfair by the power of the court found in s 21B(3)(b) to rule as inadmissible the whole or any part of the pre-recorded evidence “in the same manner as if the evidence was given orally”. This power includes the power to exclude evidence in the exercise of the discretion if the admission of the evidence would be unfair.

[32] We turn to questions (1) – (3). These questions concern the procedure to be followed at a special hearing when the first option has been elected. In particular question (1) asks whether, at a special hearing, the prosecution can present a pre-recorded interview with the witness or statement of the witness as the examination-in-chief of the witness in the special hearing.

[33] If s 21B(2) is approached on the basis that the reference to a “proceeding” in which the election of an option may occur is a reference to the trial before the jury, the operation of the provisions governing the consequences of the election follows naturally and without difficulty. The same cannot be said, however, if “proceeding” is read as including the special hearing.

[34] A special hearing can only occur through the operation of s 21B(4). There is no basis for enlivening the operation of s 21B(4) unless, “in a proceeding in relation to an offence”, the second option has been chosen. Necessarily, the “proceeding” in which the second option is chosen, thereby enlivening the operation of s 21B(4), is a hearing separate from the special hearing. The operation of s 21B in its entirety presupposes that the “proceeding” in which the election of an option is made is a different “proceeding” from the special hearing which comes into existence only after the second option is chosen. Notwithstanding the breadth of the definition of “proceeding” in s 4, when s 21B(2) speaks of an election “in a proceeding in relation to an offence”, it is speaking of an election in the trial before the jury and for the purposes of that trial. The context and content of s 21B(2) restricts the meaning of “proceeding” for the purposes of that subsection.

[35] Although the election is in the trial before the jury, from a practical point of view the election of the second option will be made after the accused has been arraigned and before a jury is empanelled. This procedure enables the special hearing to occur before selection of a jury.

[36] It follows from this construction of s 21B that in the special hearing which follows the election of the second option, s 21B(2) has no role to play and does not authorise an election by the prosecution to present the examination-in-chief at the special hearing by way of a pre-recorded statement. Absent the assistance of s 21B(2)(a), the question is whether there is any other basis authorising the use of a pre-recorded statement as the examination-in-chief at a special hearing.

[37] If the second option is elected, s 21B(4)(a) provides that the “whole of the evidence” [to be given at trial] must be “given” and “recorded” at a special hearing. Read in isolation, the direction that the whole of the evidence must be “given” at a special hearing does not require that the evidence be given orally. It leaves open the possibility that the evidence could be given by some other means. However, the giving of evidence by the tendering of a pre-recorded statement as the witness’ evidence-in-chief is an exception to the ordinary and well recognised procedure of giving oral evidence. It is an exception that requires a statutory basis because the witness’ evidence-in-chief is in a leading, non-permissible form and is therefore objectionable: see the discussion in Cross on Evidence, Aust. Looseleaf Ed, para [17155]. Whenever a procedure of tendering a pre-recorded statement as the evidence of a witness is adopted, a statutory basis exists: c.f. s 26D of the Evidence Act which permits evidence of a witness in the form of a statement to be admitted in civil proceedings where the witness is not interested in the proceedings at the time the statement is made. In respect of a special hearing, however, there is no statutory basis for the adoption of that exceptional course. In these circumstances, in the absence of consent from an accused to the adoption of an alternative course, in our opinion the whole of the evidence of the witness at the special hearing must be given orally. In particular, it is not permissible to present a pre-recorded interview with or statement of the witness as the witness’s examination-in-chief at a special hearing.

[38] A contrary view was taken by a Judge of this Court in Joyce. His Honour was of the view that a “proceeding” for the purposes of s 21B(2) encompassed the special hearing conducted pursuant to s 21B(4). His Honour reached that view without the benefit of full argument and without objection by the accused. After some discussion, counsel for the accused did not object to the presentation at the special hearing of a video-tape of a statement by the witness to police as the examination-in-chief of the witness. For the reasons we have given, in our respectful opinion the learned Judge in Joyce was in error.

[39] We answer the questions as follows:

(1) No.

(2) Not applicable.

(3) Yes.

(4) Yes, except that there is no requirement under s 21B(2)(a) that the evidence be pre-recorded by the Crown.

--------------------------------------------