Director of Public Prosecutions (NSW) v Banks [2019] NSWSC 363

Director of Public Prosecutions (NSW) v Banks [2019] NSWSC 363 · Read the judgment on AustLII

Catchwords: DVEC recordings – admissibility in the absence of the complainant

The Supreme Court has determined a long-outstanding question about whether a Domestic Violence Evidence in Chief (‘DVEC’) recording might be admissible if the complainant doesn’t attend court. On appeal from the Local Court, a single judge of the Supreme Court has determined that admissibility is determined by the Evidence Act; that is, there is no absolute prohibition on the prosecution tendering a DVEC if the complainant is not at court.

The defendant was charged with an assault on a woman with whom he had been in a relationship: He turned up at her home in the middle of the night, neighbours heard the complainant screaming and calling out for help, and when she came out they eventually saw her with injuries. She undertook a DVEC, but from then on, in the lead-up to the hearing, police formed the view that she was avoiding service of the subpoena. She didn’t come to court. The prosecution sought to tender her DVEC as her evidence, relying on s65 of the Evidence Act. The defendant submitted that provisions in Part 4B of the Criminal Procedure Act, which provides for the taking and admission of DVECs, rendered the DVEC recording inadmissible. The Magistrate agreed with the defendant, and so the Evidence Act test was never actually applied; the prosecution’s central evidence having been excluded, no further evidence was offered, the Magistrate determined that there was no case to answer, and dismissed the charge. The prosecution appealed.

On appeal, the essence of the dispute was summarised by Ierace J (sitting alone) this way: the prosecution submitted that s289F of the Criminal Procedure Act concerns only the giving of evidence-in-chief, whereas the defendant submitted that the provision sets out the only circumstances (that is, to the exclusion of the Evidence Act provisions) in which a DVEC may be tendered by the prosecution (at [34]). Largely on the basis of an exercise in statutory interpretation, his Honour accepted the plaintiff’s submission, holding that it is clear from the statutory language that the provision does not go beyond the form in which evidence-in-chief is to be given. Lest there be any doubt, a nearby section, s289E, more clearly provides that the Evidence Act is to continue to apply (at [36]). This interpretation was, his Honour found, consistent with the purpose of the provision as expressed in the Second Reading speech, in which the Attorney General said nothing in that could reasonably be interpreted as an intention to eliminate the existing use of prior representations of an unavailable complainant. If that was the intention and purpose, it is unthinkable that it would not have been expressly acknowledged (at [38]-[40]).

Having found for the prosecution on the main point, his Honour was quick to telegraph that, when the proper Evidence Act tests are eventually applied in this particular matter (back in the Local Court, to which the matter was remitted for hearing according to law), there are reasons to suspect that despite his decision, the evidence might not ultimately be admitted, given questions of reliability of the complaint, and the prejudice to the defendant of being unable to cross examine the complainant (at [42]-[43]).