[Home] [Databases] [WorldLII] [Search] [Feedback] District Court of Western Australia

You are here: 

THE STATE OF WESTERN AUSTRALIA -v- DASS [2022] WADC 116 (22 December 2022)

Last Updated: 16 June 2023

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION : PERTH

CITATION : THE STATE OF WESTERN AUSTRALIA -v- DASS [2022] WADC 116

CORAM : PRIOR DCJ

HEARD : 29 NOVEMBER 2022

DELIVERED : 22 DECEMBER 2022

FILE NO/S : IND 1781 of 2020

BETWEEN : THE STATE OF WESTERN AUSTRALIA

AND

PAUL RAJAN ANTHONY DASS

Evidence - Pre-recording of evidence - Recalling of a child complainant for further cross-examination

Legislation:

Evidence Act 1906 (WA), s 23, s 25, s 36BC, s 106I, s 106K, s 106T
Young Offenders Act 1994 (WA), s 189, s 190

Result:

Application to recall witness refused

Representation:

Counsel:

Solicitors:

Case(s) referred to in decision(s):

A v Wood [2019] WASC 337

Browne v Dunn (1894) 6 R 67

Clarkson v Dainton [2017] WASC 309

D v Edgar [2019] WASC 183

HAR v The State of Western Australia [No 2] [2015] WASCA 249

P (A Child) v The Queen (1997) A Crim R 593

Pavlovic v Spooner  [2014] WASCA 31 ; (2014) 239 A Crim R 1

Reid v Readdy [1999] WASCA 208

The State of Western Australia v RAJ [2014] WADC 108

The State of Western Australia v TAT [2012] WADC 183

PRIOR DCJ:

Introduction

1. Mr Dass is charged on Indictment 1781 of 2020 with the following offences:

(a) four counts of sexual penetration of a child of or over the age of 13 years and under the age of 16 years; and

(b) two counts of indecently dealing with a child of or over the age of 13 years and under the age of 16 years.

2. There are two child complainants. In relation to the first complainant, VCCN, Mr Dass is charged with three counts of sexual penetration (counts 1 - 3). In relation to the second complainant, BMC, Mr Dass is charged with two counts of indecent dealing (counts 4 and 5) and one count of sexual penetration (count 6).
3. Counts 4 and 5 involving BMC are alleged to have occurred on the same occasion in July or August 2018 at Mr Dass' house in Leeming. Count 6 is alleged to have occurred on another date in August 2018 also at Mr Dass' house in Leeming.
4. BMC's date of birth is 5 August 2003. She would have been 14 or 15 years old at the time of the alleged offending. She is now 19 years old.
5. A trial is listed to commence in the Perth District Court on 23 May 2023.
6. Mr Dass made an application dated 10 November 2021 to recall BMC for cross-examination. BMC's evidence was pre-recorded on 9 April 2021. BMC participated in a visually recorded child witness interview on 6 November 2018.

History of the matter

7. Mr Dass' counsel, Mr Jackson, took conduct of this matter on 25 March 2021 on a grant of Legal Aid. The charges had already been committed to the District Court.
8. Mr Jackson received disclosure from Mr Dass' previous counsel on 29 March 2021.
9. Mr Jackson represented Mr Dass at the pre-recording of the evidence of VCCN and BMC on 9 April 2021.
10. After the pre-recording, Mr Jackson realised that there was disclosure referred to in the Unified Physical Material List which would have been relevant to his cross examination of BMC. He was not aware of this material until after the pre-recording. This material related to SMS messages sent by BMC to other persons.
11. Mr Jackson then found further material in the prosecution brief which was similarly relevant relating to BMC's Transperth SmartRider records.
12. Although Mr Jackson had access or would have been able to obtain access to the relevant material, his oversight was the result of having a short amount of time to prepare for the pre-recording and the voluminous nature of the disclosure.
13. Mr Jackson found a reference to BMC having a criminal history recording a conviction as a child after the pre-recording. This record had not been disclosed to Mr Dass as the Office of the Director of Public Prosecutions was unaware of its existence.[1] Mr Jackson could not have accessed this conviction at the time of the pre-recording.

Application to recall BMC

14. Mr Dass in his application to recall BMC for cross-examination seeks to cross-examine BMC about three categories of evidence.
15. Firstly, to cross-examine BMC in relation to SMS messages sent by her to other persons. Mr Dass submits that these messages establish inconsistencies in her evidence that are relevant to her credibility. (SMS messages)
16. Secondly, to cross-examine BMC about the existence of her juvenile conviction, the offending for which occurred after Mr Dass' alleged offending against BMC, but before BMC complained to police. Mr Dass says this conviction is relevant to her credibility as it can be submitted that she was a person of bad character at the time of the complaint. BMC was convicted of an offence of aggravated armed robbery in the Children's Court on 30 January 2019. The offence was committed on 26 October 2018. She was sentenced to a 9-month Intensive Youth Supervision Order commencing on that date. That sentence expired on 30 October 2019. (BMC's previous conviction)
17. Thirdly, to cross-examine BMC in relation to her SmartRider records. Mr Dass submits that these records establish inconsistencies in her evidence that are relevant to her credibility and to count 6 on the indictment. Mr Dass submits that they establish that she could not have travelled to Mr Dass' residence using Transperth on the date count 6 is alleged to have occurred, as she stated during her evidence. (SmartRider records)
18. The State opposes Mr Dass' application in relation to all three categories of evidence.

The issues

19. There are two main issues to be determined to resolve Mr Dass' application.
20. Does s 189 and s 190 of the Young Offenders Act 1994 (WA) (YOA) render any questions about BMC's previous conviction inadmissible? (first issue)
21. Has Mr Dass satisfied me that BMC should be recalled to be cross-examined? (second issue)
22. The first issue relates only to BMC's previous conviction. The second issue must be considered for each category.

Defence submissions

First issue

23. Mr Dass submits that none of the authorities the State rely upon which I have cited at [39] are of assistance. None of those authorities directly consider whether s 189 and s 190 of the YOA have applicability to cross-examination of a witness about a prior conviction.
24. Mr Dass submits that, as he is relying on BMC's previous conviction to challenge her credibility, which he is entitled to do pursuant to s 23(1) of the Evidence Act 1906 (WA) (Evidence Act),[2] s 189 and s 190 do not apply.
25. Mr Dass submits that:[3]

[T]he Evidence Act deals with critical issues of assessing the credibility of a witness in a criminal trial, which may have significant ramifications for an accused person who is unrelated to the juvenile with the prior conviction.

26. In the alternative, Mr Dass submits that at the time of the pre-recording, BMC's conviction had not expired as two years had not passed since the discharge of her sentence. Mr Dass submits that if BMC was recalled to give evidence, it is open to interpret the 'proceedings' referred to in s 190 of the YOA as at the time of the original pre-recording. In other words, it is open to interpret the original pre-recording and the future cross-examination as the same proceedings.

Second issue

27. Mr Dass submits that the primary consideration is whether it is in the interests of justice to allow the application.
28. It is submitted that it is in the interests of justice to recall BMC for two main reasons.
29. Firstly, to comply with the rule in Browne v Dunn,[4] as each category of evidence will be adduced during the trial irrespective of whether BMC is recalled.[5]
30. Secondly, the State's case in relation to counts 3 - 6 relies on the jury accepting the evidence of BMC beyond reasonable doubt. Each category of evidence is relevant to the jury's assessment of BMC's credibility and Mr Dass submits he should be able to cross-examine her on each in fairness to the defence.
31. Mr Dass submits that no prejudice would be suffered by the State as many of the matters Mr Dass seeks to put to BMC ought to have been put in fairness to her.
32. Mr Dass seeks to cross-examine BMC for five purposes in relation to the SMS messages.
33. BMC's evidence in her child witness interview was that the first time she went to Mr Dass' house was when counts 4 and 5 allegedly occurred. Various SMS messages confirm that she had been to his residence willingly before that time. (first purpose)
34. In cross-examination, BMC denied that Mr Dass repaired her mobile telephone. Various SMS messages confirm that BMC was getting her mobile telephone repaired at the time she had been attending Mr Dass' residence. (second purpose)
35. In cross-examination, BMC asserted that she did not have a mobile telephone when Mr Dass allegedly offended against her. Her mobile telephone records indicate that she did. (third purpose)
36. In various SMS messages, BMC recounted a different allegation of sexual assault against her by another person which she reported to police immediately. Conversely, she failed to report the incident involving Mr Dass until police attended her house months later. (fourth purpose)
37. BMC denied introducing herself as 'B' to Mr Dass. Various SMS messages refer to BMC as 'B'. (fifth purpose)

State submissions

First issue

38. The State submits that it is improper to allow the cross-examination of a person on a criminal conviction recorded against them when they were a child under certain circumstances.
39. The State have referred to several authorities,[6] all of which finding that convictions as a juvenile could not be regarded as a conviction due to the provisions of s 189 and s 190 of the YOA.
40. The State submits that it is irrelevant that BMC is now an adult; s 4 of the YOA states that the provisions of the YOA apply to persons who have since turned 18 if they were aged under 18 when committing an offence.

Second issue

41. The State submits that the main principle relevant to Mr Dass' application is whether the interests of justice require leave to be granted or refused. This necessitates an analysis of two competing principles: the rationale of the pre-recording regime (namely to minimise the trauma for the complainant), and the risk of an unfair trial to the accused. The State submits that the refusal of Mr Dass' application would not result in him receiving an unfair trial.
42. It is submitted that none of the categories for which Mr Dass seeks to have BMC recalled for cross-examination are points of substance.[7]
43. The State submits that the SMS messages and the SmartRider records go to purely collateral issues, namely credibility.
44. During oral submissions before me on 29 November 2022, the State said that Browne v Dunn would not arise as BMC was extensively cross-examined on how she travelled to Mr Dass' residence. The State would not be seeking a Browne v Dunn direction at trial if the SmartRider records were adduced through the investigating officer.[8]
45. I note that the SmartRider records of BMC do not exclude the possibility that BMC purchased a Transperth ticket or used another person's SmartRider card or never paid for a ticket to travel on the train.
46. With respect to the specified purposes that Mr Dass seeks to cross-examine BMC relating to SMS messages, the State submits:
    1. The first, second, third and fifth purposes relate to collateral issues only.
    2. The second and fifth purposes are not prior inconsistent statements.
    3. The fourth purpose would be an inadmissible line of questioning pursuant to s 36BC of the Evidence Act.

The law

First issue

47. Section 189(2)(a) of the YOA states that:

(2) If a young person is convicted of an offence and a period of 2 years has expired since -

(a) the discharge of any sentence imposed as a result of the conviction;

...

the conviction is not to be regarded as a conviction for any purpose, except as provided for in [s 189].

48. It has been more than three years since BMC completed her sentence.
49. The purpose of s 189 of the YOA was outlined by his Honour Chief Justice Martin:[9]

Section 189 of the [YOA] operates in circumstances to relieve offenders of the long-term consequences of convictions recorded against them as a juvenile. It has been described as having a 'rehabilitative purpose', consistent with the objectives of rehabilitation and reintegration in the community.

50. Section 190(1) of the YOA states that:

If s 189 provides that a conviction of an offence is not to be regarded as a conviction, evidence of that conviction is not admissible in any proceedings, other than proceedings under this Act or on indictment for the offence or for a subsequent offence.

51. I accept the State's submission that it is irrelevant that BMC is now an adult. Section 4 of the YOA applies and states:

If a person commits or allegedly commits an offence before reaching the age of 18 years, this Act applies to the person as a young person for purposes connected with that offence or any order that was made in dealing with the person for that offence.

52. Mr Dass relies on s 23 of the Evidence Act as proof of a statutory right to cross-examine a witness as to credibility in relation to their previous convictions. Although not mentioned in Mr Dass' submissions, s 25 of the Evidence Act further provides:

(1) If any question put to a witness upon cross-examination relates to a matter not relevant to the proceeding, except in so far as it affects the credit of the witness by injuring his character, it shall be the duty of the court to decide whether or not the witness shall be compelled to answer it, and the court may, if it thinks fit, inform the witness that he is not obliged to answer it.
(2) In exercising this discretion, the court shall have regard to the following considerations -

(a) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;

...

53. This section was considered by his Honour Justice Buss (as he then was) in HAR v The State of Western Australia [No 2][10] (HAR). His Honour stated:[11]

[I]f a question is within s 25(2)(a), that classification does not fetter or otherwise constrain the power to rule that, on some other basis than s 25, the question is improper or objectionable ... and should therefore be disallowed.

54. Section 189(2) of the YOA when read with s 190 of the YOA renders any questions about BMC's previous conviction inadmissible in any proceeding, including Mr Dass' upcoming trial. However, Mr Dass would theoretically not be precluded from putting to BMC in cross-examination questions about the factual basis for her previous conviction.[12] He would be permitted to do this provided there was an admissible basis for those questions. I will come back to this when dealing with the disposition of BMC's previous conviction.
55. Mr Dass' alternate submission is that, given BMC's conviction had not expired at the time of the pre-recording, it is open to interpret further cross-examination as within the same proceedings. This approach would allow BMC's conviction to be considered as a conviction.
56. It is not necessary to determine whether this approach is correct; even assuming it is correct, I do not accept Mr Dass' submission. Section 190 of the YOA explicitly refers to s 189. The time period of two years in s 189 cannot be completely divorced from the words 'any proceedings' in s 190. If BMC's original pre-recording could be considered the same proceeding as subsequent cross-examination after being recalled, Mr Dass' application would still fail because two years had elapsed since expiry of BMC's sentence at the time she is recalled.
57. An analogy can be drawn to a trial where a witness with a juvenile criminal history is called. If, at the commencement of the trial, two years had not elapsed since the expiry of that witness' juvenile conviction, but at the time of giving evidence two years had elapsed, my view is that evidence of that conviction would not be admissible. The trial would be considered one proceeding. However, the terms of s 189 are clear: if a period of two years has expired, the conviction is not to be regarded as a conviction for any purpose. In my view, that includes using the conviction in ongoing proceedings.

Second issue

58. The pre-recording of BMC's evidence was authorised by s 106I and s 106K of the Evidence Act. Section 106T provides for the use of recordings made under s 106K. Section 106T(1) states:

Evidence of a special witness recorded on a visual recording under section 106K or 106N in relation to a ... proceeding is admissible in any hearing in relation to that proceeding to the same extent as if it were given orally in the hearing in accordance with the usual rules and practice of the court concerned.

59. Section 106T(3) of the Act provides:

A judge of a court before which it is proposed to adduce evidence on a visual recording under subsection (1), (2), (2a) or (2b) in a hearing may order that the affected child or special witness or witness, as the case may be, attend the court for the purposes of giving further evidence in clarification of the evidence on the visual recording.

60. Her Honour Judge Davis outlined the general principles relevant to an application for an order pursuant to s 106T(3).[13]
    1. The court has a discretion to order a child or special witness to give further evidence where it is in the interests of justice to do so.
    2. The onus is on the applicant to satisfy the court that it is an appropriate case for the exercise of the discretion.
    3. In my view, there are three factors the court must consider when determining an application pursuant to s 106T(3):

(a) that the purpose of the child attending court is to give further evidence in clarification;

(b) the interests of the accused, in particular the right to a fair trial; and

(c) the interests of the child.

There will be a necessary balancing requirement between these last two factors.

61. The balancing requirement referred to by her Honour can be broadly categorised as deciding what is in the interests of justice.[14]
62. The term 'further evidence in clarification' comprises two concepts: [15]

[T]he evidence must be further evidence other than that which has been videotaped. It would not seem to me to encompass the notion of starting all over again but rather some evidence which is further in the sense of being additional to that which was videotaped. ... [T]he expression 'in clarification' means to make more clear.

63. This should not be interpreted narrowly and could include cross-examination for Browne v Dunn purposes.[16]
64. I do not accept Mr Dass' submission that, as BMC is now an adult, the principles stated do not apply. I do, however, consider that BMC's current age is a relevant factor in determining her interests.

Disposition

SMS messages

65. I am satisfied that the cross-examination in relation to the SMS messages would elicit evidence in clarification of existing evidence.
66. Therefore, the remaining question is whether it is in the interests of justice to recall BMC for cross-examination.
67. This requires consideration of each specified purpose I have outlined in [33] - [37] as well as the interests of Mr Dass and BMC.
68. I accept the State's submission that the fourth purpose would require an inadmissible line of questioning. It is not in the interests of justice to recall BMC for the fourth purpose.
69. I accept the State's submission that the second and fifth purposes are not prior inconsistent statements. Her evidence on those purposes is clear and putting to her that her evidence is incorrect would have little utility. It is not in the interests of justice to recall BMC for those purposes.
70. The first and third purposes are prior inconsistent statements. I do not accept the State's submission that BMC can only be recalled for 'matters of substance', which does not include issues of credibility. This would be inconsistent with my interpretation of the 'giving further evidence in clarification' aspect of s 106T.
71. The question for the first and third purposes is solely a question of balancing the interests of Mr Dass and BMC.
72. The potential Browne v Dunn direction in relation to both purposes is a minor consideration, particularly given the terms of the direction which will be provided by the trial judge. I do not think the accused will suffer any significant prejudice, and do not think it is in the interests of BMC to put her through cross-examination again on these matters.

BMC's previous conviction

73. At common law, cross-examination of a complainant is permitted in relation to previous misconduct for the purpose of discrediting the witness.[17] However, the scope of this has limits.[18] His Honour Justice Buss explained:[19]

For example, a witness's character or previous conduct cannot be used to attack his or her credit or credibility unless the character or previous conduct is of such a nature as to tend logically and rationally to weaken confidence in his or her veracity or in his or her trustworthiness as a witness of truth.

74. In HAR it was considered the previous commission of an unlawful assault is relevant to indicate a violent character and the previous commission of a fraud is relevant to indicate a dishonest character.[20]
75. The factual basis for BMC's conviction carries equivocal imputations. It could imply that she is a violent person. It could imply that she is a dishonest person. I am not convinced that the first imputation alone is capable of showing that BMC is not a reliable witness. The second imputation is less available on the evidence as the jury would not have the context of the fact of the conviction, which includes the element of stealing which carries inherent dishonesty.
76. At a directions hearing before me on 29 November 2022, I asked counsel for Mr Dass how he seeks to use BMC's previous conviction. He responded, 'I'd just ask her on this date you were convicted of this offence'.[21]
77. I have not received any submissions further specifying the use of BMC's previous conviction or the factual basis for her conviction. Mr Dass is only relying on the fact of the conviction to discredit BMC, which would be inadmissible.
78. I am not willing to accept without submissions that evidence of the factual basis for BMCs previous conviction could affect an assessment of her credibility. In other words, I am not willing to assume that the evidence is relevant.
79. Mr Dass bears the onus of satisfying the court to exercise its discretion. I am not satisfied that Mr Dass has reached this standard.

SmartRider records

80. The State's indication that they would not seek a Browne v Dunn direction if evidence relating to the SmartRider records was led is fatal to Mr Dass' submission that it would be unfair to the defence to not allow BMC to be cross-examined.
81. The evidence can be adequately adduced through the investigating officer at trial and there is no need for BMC to be recalled for cross-examination. Mr Dass will be able to make the same submissions as he would if BMC was recalled for this purpose.
82. It would not be in the interests of justice to subject BMC to further cross-examination on evidence that can be otherwise tendered without her. This is particularly so when there is no prejudice to Mr Dass by proceeding in this manner.

Orders

83. Mr Dass' application to recall BMC for cross-examination is refused.
    

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

RR
Associate to Judge Prior

22 DECEMBER 2022

[1] ts 281.
[2] Section 23(1) states: 'A witness may be questioned as to whether he has been convicted of any indictable offence, and, upon being so questioned, if he either denies or does not admit the fact, or refuses to answer, the cross-examining party may prove such conviction'.
[3] Mr Dass' submissions dated 7 December 2022, par 5.
[4] Browne v Dunn (1894) 6 R 67.
[5] Pending my ruling on the first issue.
[6] P (A Child) v The Queen (1997) A Crim R 593; Clarkson v Dainton [2017] WASC 309; D v Edgar [2019] WASC 183 (Edgar); A v Wood [2019] WASC 337.
[7] Reid v Readdy [1999] WASCA 208 [13].
[8] ts 288.
[9] Pavlovic v Spooner  [2014] WASCA 31 ; (2014) 239 A Crim R 1 [13].
[10] HAR v The State of Western Australia [No 2] [2015] WASCA 249.
[11] HAR [93].
[12] HAR [151].
[13] The State of Western Australia v TAT [2012] WADC 183 [11] (footnotes omitted).
[14] The State of Western Australia v RAJ [2014] WADC 108 [33].
[15] Tanner v The State of Western Australia [2001] WADC 207 [14].
[16] Tanner v The State of Western Australia [14].
[17] HAR [51].
[18] HAR [52].
[19] HAR [53].
[20] HAR [51].
[21] ts 283.