[2026] SADC 33

Prosecution: R Counsel: MISS R ANDERSEN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: HOURAN KHY Counsel: MRS M SHAW KC WITH MR T MORAN - Solicitor: AGRESTA MORAN BARRISTERS AND SOLICITORS Hearing Date/s: 06/11/2025 File No/s: DCCRM-24-033184 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal: Interlocutory Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v KHY (No 2) [2026] SADC 33 Reasons for Ruling of her Honour Judge Matteo 14 April 2026 CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN The defendant is charged with the offence of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The court has refused an application by the Director of Public Prosecutions brought pursuant to s 13BA of the Evidence Act 1929 (SA) for the evidence of the child complainant to be admitted at the defendant’s trial in the form of a prescribed interview conducted pursuant to Part 17 Division 3 of the Summary Offences Act 1953 (SA). The prosecution proposes to call the child complainant to give oral evidence at the trial in the usual manner. The defendant applies for exclusion of the evidence of the child complainant based upon the contents of the prescribed interview. The defendant contends that the contents of the interview are rendered inadmissible by s 74EC of the Summary Offences Act 1953 (SA). Held: 1. Section 74EC of the Summary Offences Act 1953 (SA) operates to render inadmissible the recording of a prescribed interview, not the content or subject matter of the interview. 2. The application is refused. Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 12AB, 13BA, 13BA(1), 13BA(3), 13BA(4)(a), 13BA(5), 13BA(6); Summary Offences Act 1953 (SA) ss 74C, 74EA, 74EA(1), 74EB, 74(EB(a), 74EB(b), 74EB(1)(b), 74EC, 74EC(1), 74E, pt 17, div 3; Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA); Summary Offences Regulations 2016 (SA) regs 20-23, 20(1)(c)(i), 23(1), 23(7)(a), 23(7)(b), referred to. R v Sparks [2017] SASCFC 171; R v Cronin (2018) 131 SASR 111; R v Willmott (No 6) [2025] SASCA 168; R v Khy [2025] SADC 111; Brown (A Pseudonym) v The King [2025] SASCA 40; Duncan v Bert Farina Constructions Pty Ltd [2024] SASCA 67, considered. -- 1 of 17 -- -- 2 of 17 -- R v KHY (No 2) [2026] SADC 33 Introduction 1 The defendant is charged with the offence of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The defendant has elected to be tried by judge alone. 2 The particulars of the offence are that between 2019 and 2022, at certain places, the defendant maintained an unlawful sexual relationship with JY, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely, touching her breasts, thighs and genital area on more than one occasion and watching pornography in her presence. 3 The complainant, JY, is currently aged 14 years. The defendant is married to JY’s cousin and is therefore a member of JY’s extended family. 4 Broadly, it is alleged that from when JY was about seven years of age to about twelve years of age, the defendant would touch JY’s breasts, thighs and genital area approximately fortnightly at family gatherings at JY’s grandfather’s house or the defendant’s house. It is alleged that on one occasion, the defendant watched a pornographic video on his mobile phone in JY’s presence, and she was able to see it. The final act of unlawful sexual touching is alleged to have taken place at JY’s grandfather’s house while JY was in bed and the defendant’s children were in the room.1 5 According to the prosecution case statement, JY made various disclosures to family members about the alleged touching, with the last complaint being to her parents in ‘around 2022’.2 6 On 18 October 2023, Brevet Sergeant Kristy Whyatt of South Australia Police received a CARL notification from JY’s school.3 7 On 20 October 2023, Brevet Seargeant Whyatt attended at JY’s school and there conducted an audio visually recorded interview with JY, pursuant to Part 17 Division 3 of the Summary Offence Act 1953 (SA) (‘SO Act’). I will refer to this as ‘the first prescribed interview’. In the course of that interview, JY made the allegations of sexual touching by the defendant on which the prosecution’s case is based. 8 The defendant was arrested on 29 October 2023. 9 On 2 May 2024, Brevet Sergeant Whyatt conducted a further audio visually recorded interview with JY, in which JY was asked to elaborate upon or further 1 Prosecution case statement filed 3 October 2024 (FDN 10). 2 Prosecution case statement filed 3 October 2024 (FDN 10). 3 T60 (Voir Dire hearing). -- 3 of 17 -- [2026] SADC 33 2 explain aspects of her account from the previous interview. I will refer to this as ‘the second prescribed interview’. 10 For reasons which are explained in my reasons for ruling dated 3 September 2025, I refused the Director of Public Prosecution’s application brought pursuant to s 13BA(1) of the Evidence Act 1929 (SA) (‘Evidence Act’) for the first prescribed interview to be admitted in the defendant’s trial.4 11 As a practical consequence of my ruling, the second prescribed interview is not sought to be admitted in the defendant’s trial. 12 The defendant now applies for an order that the evidence of JY in the first and second prescribed interviews is inadmissible.5 13 A preliminary point to be made is that I have not refused the Director’s application for admission of the second prescribed interview, nor have I found (or have I been asked to find) that it was not conducted in accordance with the requirements of Part 17 Division 3 of the SO Act. As the second prescribed interview is referable to the first prescribed interview, it would not be led by the prosecution standing alone. 14 The defendant’s argument in essence is that, as the first prescribed interview was found not to have been made in compliance with the requirements under the SO Act, its contents are inadmissible. The argument goes that s 74EC of the SO Act covers the field in relation to the admissibility of interviews conducted with children and other vulnerable witnesses to whom the prescribed interview provisions apply and, as such, the contents of an audio visually recorded interview which is deemed to be inadmissible in proceedings for an offence cannot be admitted in those proceedings, including the subject matter of the interview. 15 In assessing the defendant’s present application, it is necessary to have regard to my reasons for refusing the Director’s application for admission of the first prescribed interview pursuant to s 13BA of the Evidence Act. I will not re-traverse those reasons, other than to summarise that I found: 1. That the transcoded version of the interview sought to be admitted by the prosecution did not constitute an audio visual record of JY’s evidence on account of it not being a precise replica of the original recording.6 2. That if the transcoded version of the interview did constitute an audio visual record of JY’s evidence subject to admission under s 13BA of the Evidence Act, it was inadmissible as the interviewer had failed to comply with Part 17 4 R v Khy [2025] SADC 111. 5 Interlocutory application filed 3 October 2025 (FDN 85). 6 R v Khy [2025] SADC 111, [93]-[96]. -- 4 of 17 -- [2026] SADC 33 3 Division 3 of the SO Act by not recording all conversations which formed part of the interview, as required by s 74EB.7 3. That the interview was otherwise conducted in compliance with the requirements of Part 17 Division 3 of the SO Act.8 4. The interests of justice did not require the admission of the evidence despite the interviewer’s noncompliance with the s 74EB requirement to make an audio visual recording of ‘the interview’, which includes part of a conversation.9 16 This application raises the question of whether s 74EC of the SO Act operates to render inadmissible the audio visual recording of an interview which is conducted other than in accordance with Part 17 Division 3 of the SO Act, or the entire subject matter of such an interview. The applicable statutory provisions 17 It is necessary to set out the statutory provisions which provide for the recording and admission of the evidence of children and other vulnerable witnesses in certain criminal proceedings. 18 Section 13BA of the Evidence Act provides as follows: 13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings (1) Subject to this section, the court may, in the trial of a charge of an offence, or in a pre-trial special hearing conducted in accordance with section 12AB, order that the evidence of a witness be admitted in the form of an audio visual record. (2) Subject to subsection (2a), an application for an order under subsection (1) must— (a) be made in writing by the party wishing to have the audio visual record of the evidence admitted under this section; and (b) be filed in the court; and (c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and (d) otherwise be made in accordance with the rules of court. (2a) An application for an order to admit an audio visual record of the examination, cross-examination or re-examination of a witness at a pre-trial special hearing 7 R v Khy [2025] SADC 111, [97], [150], [166]. 8 R v Khy [2025] SADC 111, [120], [132], [139]. 9 R v Khy [2025] SADC 111, [171]-[176]. -- 5 of 17 -- [2026] SADC 33 4 may be made orally at the pre-trial special hearing or in accordance with any directions of the court. (3) An audio visual record of the evidence of a witness may be admitted under this section if the recording— (a) has been made in a pre-trial special hearing conducted in accordance with section 12AB; or (b) has been made pursuant to Part 17 Division 3 of the Summary Offences Act 1953 and— (i) the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and (ii) the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and (iii) the witness is available, if required, for further examination, cross-examination or re-examination during the course of the trial or, if the order for admission of the recording is being sought in a pre- trial special hearing under section 12AB, during the course of the pre-trial special hearing. (4) The court's discretion to exclude evidence is not affected by subsection (3) and the court may— (a) rule as inadmissible the whole or any part of the recording; or (b) before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason. (5) Despite subsection (3)(b)(iii), the witness cannot be further examined, cross-examined or re-examined on the evidence admitted under this section without the permission of the court which may only be given, on application by a party to the proceedings— (a) if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or (b) if the witness gives evidence in the trial or, if the order for admission of the recording is being sought in a pre-trial special hearing under section 12AB, during the course of the pre-trial special hearing, apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross-examined or re-examined; or -- 6 of 17 -- [2026] SADC 33 5 (c) if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross-examined or re-examined. (6) If a court admits evidence in the form of an audio visual record under this section, the judge must— (a) explain to the jury that the law allows the court to admit evidence in this form; and (b) warn the jury— (i) not to draw from the admission of evidence in that form any inference adverse to the defendant; and (ii) not to allow the admission of evidence in that form to influence the weight to be given to the evidence. 19 Part 17 Division 3 of the SO Act provides as follows: Division 3—Recording interviews with certain vulnerable witnesses 74EA—Application and interpretation (1) This Division applies to a person being interviewed as a potential witness who is— (a) a child of or under the age of 14 years; or (b) a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions. (1a) This Division also applies to a person (not being a person described in subsection (1)) who is being interviewed as the victim of an alleged child sexual offence. (2) In this Division— child sexual offence means a sexual offence committed in relation to a person under the age of 18 years; serious offence against the person means— (a) murder or attempted murder; or (b) manslaughter or attempted manslaughter; or (c) a sexual offence; or (d) — (ai) an offence of criminal neglect under section 14 of the Criminal Law Consolidation Act 1935; or -- 7 of 17 -- [2026] SADC 33 6 (i) an offence of stalking and harassment under section 19AA of the Criminal Law Consolidation Act 1935; or (ii) an offence of causing serious harm under section 23 of the Criminal Law Consolidation Act 1935; or (iia) an offence of causing harm under section 24 of the Criminal Law Consolidation Act 1935; or (iii) an offence involving an unlawful threat to kill or endanger life; or (iv) an offence involving abduction; or (v) an offence involving blackmail; or (vi) an attempt to commit, or assault with intent to commit, any of the offences in the preceding subparagraphs; or (e) an offence of contravening or failing to comply with an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; (f) or an offence of contravening or failing to comply with a restraining order under the Summary Procedure Act 1921; sexual offence means— (a) rape; or (b) compelled sexual manipulation; or (c) indecent assault; or (d) any offence involving unlawful sexual intercourse or an act of gross indecency; or (e) incest; (f) or any offence involving sexual exploitation or abuse of a child, or exploitation of a child as an object of prurient interest; or (g) an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or (h) any attempt to commit, or assault with intent to commit, any of the foregoing offences. 74EB—Obligation to record interviews with certain vulnerable witnesses If a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of a serious offence against the person, the interview must be conducted as follows: -- 8 of 17 -- [2026] SADC 33 7 (a) an audio visual recording of the interview must be made in accordance with the regulations; (b) the interview must be conducted by a prescribed interviewer; (c) the manner in which the interview is conducted must meet the prescribed requirements to the prescribed extent. 74EC—Admissibility of evidence of interview (1) In proceedings for a charge of a serious offence against the person, evidence of an interview between a prescribed interviewer and a person to whom this Division applies is inadmissible unless— (a) the prescribed interviewer complied with this Division in relation to the conduct and recording of the interview; or (b) the court is satisfied that the interests of justice require the admission of the evidence despite the prescribed interviewer's non-compliance. (1a) If a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of any other offence, evidence of the interview may be admissible under section 13BA of the Evidence Act 1929 if— (a) an audio visual recording of the interview is made in accordance with the regulations; and (b) the interview is conducted by a prescribed interviewer; and (c) the manner in which the interview is conducted meets the prescribed requirements to the prescribed extent. (1b) If a prescribed interviewer's conduct and recording of an interview does not meet the requirements of subsection (1a)(c), the court may nevertheless admit evidence of the interview if satisfied that the interests of justice require the admission of the evidence despite the prescribed interviewer's non-compliance. (2) If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b) or (1b), the court must— (a) draw the jury's attention to the non-compliance by the prescribed interviewer; and (b) give an appropriate warning in view of the non- compliance, unless the court is of the opinion that the non-compliance was trivial. 20 The Summary Offences Regulations 2016 (SA) (‘SO Regs’) prescribe matters relating to prescribed interviewers, prescribed companions, communication assistants and communication devices, information to be recorded in an audio -- 9 of 17 -- [2026] SADC 33 8 visual recording of an interview with a vulnerable witness, and the manner in which such an interview is to be conducted.10 Summary of the parties’ competing contentions 21 It is submitted on behalf of the defendant that on a proper construction of s 74EC of the SO Act, the contents of the first prescribed interview are inadmissible. As the interview has been found to have been conducted not in compliance with the requirements of Part 17 Division 3 of the SO Act, and as the court has determined that the interests of justice do not require the admission of the evidence despite the non-compliance, the contents of the interview, which amount to a conversation between JY and the prescribed interviewer, are inadmissible. 22 The defendant submits that there is no textual or contextual indication that s 74EC applies only to an audio visual record of an interview, or to the form of an interview. On the defendant’s construction of s 74EC, ‘evidence of an interview’ covers the very subject matter of questions asked and answers given in an interview of a vulnerable witness in relation to the investigation of a serious offence against the person. 23 The defendant submits that the strict requirements for the conduct and recording of such an interview are consistent with the objects of the legislation, being to tightly govern the obtainment of evidence from outside a courtroom for use against a defendant in criminal proceedings. 24 The defendant submits that extrinsic material such as the second reading speech which is called in aid by the prosecution cannot subvert the plain textual and contextual meaning of the words used in s 74EC. 25 The prosecution submits that there is no textual or contextual indication that Parliament intended for the inadmissibility provision to extend beyond the audio visual recording of a prescribed interview, and that to interpret the provision as applying to the subject matter or content of an interview would lead to an outcome which is inconsistent with the broader intention of the vulnerable witness legislation. Principles applicable to statutory construction 26 The Court of Appeal in Duncan v Bert Farina Constructions Pty Ltd [2024] SASCA 67 summarised the principles relating to statutory construction as follows:11 10 Summary Offences Regulations 2016 (SA) (‘SO Regs’) regs 20-23. 11 Duncan v Bert Farina Constructions Pty Ltd [2024] SASCA 67, [39]-[45] (Doyle and Bleby JJA and Blue AJA) -- 10 of 17 -- [2026] SADC 33 9 The fundamental task of the Court in construing legislation is, of course, to give the words used in the relevant provisions the meaning that the legislature is taken to have intended.12 The contemporary approach to this task is conveniently summarised in the following passage from the reasons of Kiefel CJ, Gordon and Nettle JJ in SZTAL v Minister for Immigration and Border Protection:13 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose14. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense15. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. Similarly, in CIC Insurance Ltd v Bankstown Football Club Ltd,16 Brennan CJ, Dawson, Toohey and Gummow JJ emphasised that context in its widest sense and statutory purpose are to be considered from the outset, and not only when an ambiguity might be thought to arise on the text. This may include consideration of matters such as the existing state of the law, and the mischief which the legislation was intended to remedy. In the case of South Australian statutes, s 14 of the Legislation Interpretation Act 2021 (SA) expressly provides that the interpretation that best achieves the purpose or object of the Act (even if not expressly stated in the Act) is to be preferred to any other interpretation. Any inconvenience or improbability in the result of a construction may indicate a meaning other than the literal meaning of the relevant provision.17 Whether a particular construction assists or interferes with the coherent operation of the relevant legislation scheme may also be a relevant consideration. At the same time, contextual and purposive indications may not be used to rewrite the legislation; the meaning derived must be consistent with the language in fact used in the relevant legislation.18 Further, the purpose must be one which may be discerned from the legislation itself, read in the context of any relevant extrinsic material. Legislation must not be construed on the basis of some a priori assumption as to the statutory purpose, or as to the desirable reach or operation of the relevant provision.19 12 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [78] (McHugh, Gummow, Kirby and Hayne JJ). 13 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [14] (Kiefel CJ, Nettle and Gordon JJ). 14 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382 [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-47 [47]. 15 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408. 16 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). 17 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). 18 Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575, [15] (Kiefel CJ, Gageler, Gleeson and Jagot JJ). 19 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, [26] (French CJ and Hayne J). -- 11 of 17 -- [2026] SADC 33 10 In SZTAL v Minister for Immigration and Border Protection, Gageler J described the task as one involving “constructional choice” between the competing meanings that may be available:20 The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.21 Meaning of ‘evidence of an interview’ in s 74EC(1) of the SO Act 27 This application falls to be determined by reference to what the words ‘evidence of an interview’ in s 74EC(1) of the SO Act mean. 28 The term ‘interview’ is defined in s 74C as including a conversation, part of a conversation or a series of conversations. In my ruling excluding the audio visual record of the first prescribed interview of JY, I determined that the prescribed interviewer had failed to comply with the recording obligation set in s 74EB by not recording conversations either side of the recorded portion and which I found constituted part of the interview.22 29 I was not satisfied that the interests of justice required the admission of the evidence of the recorded interview, particularly as it was an incomplete record of the interview and suffered from technical and presentational deficits.23 30 The term ‘evidence’ is not defined in the SO Act, nor is the compendious term ‘evidence of an interview’. 31 I accept the defendant’s submission that the term ‘evidence’ is one of wide import which gleans its meaning from the context in which it is used. 32 I am unable to discern an unambiguous indication from the text of s 74EC(1) alone as to what is meant by the term ‘evidence of an interview’. That the provision refers to ‘evidence of an interview between a prescribed interviewer and a person to whom this Division applies’ seems to me to link inadmissibility to an interview of a particular kind – that is, a prescribed interview conducted under Part 17 Division 3, which must be recorded. Textually, that suggests to me that the inadmissibility provision is intended to relate to the evidence of an interview in the form of a recording. 20 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [38] (Gageler J). 21 Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, 557 [66]. 22 R v Khy [2025] SADC 111, [150]-[151]. 23 R v Khy [2025] SADC 111, [171]-176]. -- 12 of 17 -- [2026] SADC 33 11 33 I am required to construe the words in their broader context within the SO Act and its schematic connection to the Evidence Act, which together provide for the admission of pre-recorded evidence of vulnerable witnesses in criminal trials. 34 Section 74EC of the SO Act appears within Part 17 Division 3 of the Act. 35 The SO Act is an Act to make provision for certain offences against public order and for other summary offences; to make provision for powers of police officers in relation to investigation of offences; and for other purposes.24 36 Part 17 of the SO Act is concerned with recording of interviews, and Division 3 is concerned with recording interviews with certain vulnerable witnesses. Specifically, the Division applies to a person being interviewed as a potential witness who is a child of or under the age of 14 years or a person with a disability that adversely affects the person’s capacity to give a coherent account of the person’s experiences or to respond rationally to questions (s 74EA(1)).25 37 Part 17 Division 3 was inserted into the SO Act by the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) (‘SAVW Act’), which at the same time inserted s 13BA into the Evidence Act. The SAVW Act introduced a comprehensive suite of provisions concerning the admission in a criminal trial of evidence of vulnerable witnesses in the form of audio visual recordings.26 38 The SAVW Act also made provision for a pre-trial special hearing to be conducted in accordance with s 12AB of the Evidence Act. As Livesey P noted in Brown (A Pseudonym) v The King [2025] SASCA 40 (‘Brown (A Pseudonym) v The King’), the purpose of this suite of provisions was explained by the then Attorney General in the second reading of the Bill:27 This part of the Bill aims to improve the quality of the testimony of this class of witness by taking their evidence as near in time as possible to the laying of charges so as to assist memory and alleviate the painful reliving of experiences many months or even years after the event. The Bill anticipates the use of special arrangements for a witness during a pre-trial special hearing and intends that the hearing will take place in informal surroundings that do not, as would a formal trial courtroom, stress or intimidate the vulnerable witness and inhibit communication. 39 Section 13BA(1) of the Evidence Act empowers a trial court (or a court conducting a s 12AB pre-trial special hearing) to admit the evidence of a witness ‘in the form of an audio visual record’. 24 Summary Offences Act 1953 (SA) (‘SO Act’), long title. 25 Since 1 June 2022, the Division also applies to a person who is being interviewed as the victim of an alleged child sexual offence: s 74EA(1a). 26 R v Sparks [2017] SASCFC 171, [31] (Blue J); Brown (A Pseudonym) v The King [2025] SASCA 40, [121] (Livesey P). 27 Brown (A Pseudonym) v The King [2025] SASCA 40, [122] citing Second Reading Speech, Hansard, 6 May 2015, 1037. -- 13 of 17 -- [2026] SADC 33 12 40 Section 13BA(3) provides that an audio visual record of the evidence of a witness may be admitted if the recording has been made in a s 12AB pre-trial special hearing or pursuant to Part 17 Division 3 of the SO Act, and certain additional conditions are met. 41 By s 13BA(4)(a), the court may rule as inadmissible the whole or any part of the recording. 42 Section 13BA(5) requires that a party obtain permission before further examining, cross-examining or re-examining a witness whose evidence is admitted in the form of an audio visual record. 43 Section 13BA(6) provides for mandatory directions in the event of the admission of evidence in the form of an audio visual recording. 44 In R v Sparks [2017] SASCFC 171, the Court of Criminal Appeal held that a prescribed interview made pursuant to Part 17 Division 3 of the SO Act is admitted under s 13BA of the Evidence Act as the evidence of the witness and is equated to testimonial evidence, but it is not testimonial evidence.28 45 In Brown (A Pseudonym) v The King, Livesey P characterised s 13BA of the Evidence Act as a statutory aid to proof of a complainant witness’s evidence; the effect of s 13BA, in conjunction with ss 74EA-74EC of the SO Act, is to render pre-trial statements and evidence from complainants or witnesses in child sexual cases admissible at the trial.29 46 Section 13BA of the Evidence Act and ss 74EA-74EC of the SO Act are plainly intended to operate in conjunction with one another in relation to the possible admission of the evidence of a child (or relevantly disabled) witness in a criminal trial. 47 A prescribed interview with a witness conducted pursuant to Part 17 Division 3 of the SO Act can only be admitted into evidence in a criminal trial by the court granting admission under s 13BA of the Evidence Act. By s 13BA(1), the court may admit the evidence of a witness in the form of an audio visual record. Even if the preconditions for admission set in subsection (3) are met, the court retains a discretion not to admit the evidence.30 48 Section 74EB of the SO Act fixes an obligation upon police (who will necessarily be responsible for conducting an investigation into a serious offence against the person) to conduct an audio visually recorded interview with a potential witness who is a child of or under the age of 14 years or who is relevantly disabled, and to conduct that interview in the prescribed manner. 28 R v Sparks [2017] SASCFC 171, [38]-[40] (Blue J, Kourakis CJ and Hinton J agreeing). 29 Brown (A Pseudonym) v The King [2025] SASCA 40, [142]. 30 R v Sparks [2017] SASCFC 171, [35] (Blue J, Kourakis CJ and Hinton J agreeing). -- 14 of 17 -- [2026] SADC 33 13 49 Section 74EC, which immediately follows, is titled ‘Admissibility of evidence of interview’. Section 74EC(1) provides that in proceedings for a charge of a serious offence against the person, evidence of an interview between a prescribed interviewer and a person to whom this Division applies is inadmissible unless the prescribed interviewer complied with this Division in relation to the conduct and recording of the interview, or the court is satisfied that the interests of justice require the admission of the evidence despite the prescribed interviewer’s non-compliance. 50 The patent context in which s 74EC, the inadmissibility provision, is enacted is one in which strictures are applied to the investigative interviewing of children (or witnesses with a disability affecting their capacity to give a coherent account of their experiences or to respond rationally to questions or adult victims of alleged child sexual abuse) with a view to the audio visual recording of such an interview being admitted as the evidence of the interviewee in a criminal trial. The context is one which provides a means of eliminating or minimising the need for vulnerable witnesses to be further traumatised by the unnecessary recounting of distressing or embarrassing events by the pre-trial recording of evidence in the course of an investigation and admission of that evidence at trial. The importance of the integrity and scrutability of such evidence is safeguarded by the requirements relating to the training of interviewers,31 information to be included in the recording,32 the avoidance of leading questions33 and that the witness appear to understand that they must tell the truth.34 51 Section 74EC appears in the explicit statutory context of obligations and proscriptions with respect to the recording of interviews with vulnerable witnesses which may be utilised as evidence which is equated to testimonial evidence. The definition of the term ‘interview’ includes a conversation or part of a conversation,35 and casts a broad obligation upon investigators with respect to that which must be recorded and undertaken compliantly in order for evidence of a prescribed interview to be admissible. On this basis, I concluded that Brevet Sergeant Whyatt had not complied with Part 17 Division 3 of the SO Act in the conduct of the first prescribed interview of JY as parts of the conversation were not recorded.36 52 The words of s 74EC make prima facie inadmissible in certain circumstances evidence of an interview between a prescribed interviewer and a person to whom Division 3 applies. In the context of the preceding provisions read in conjunction with s 13BA of the Evidence Act, I construe the words ‘evidence of an interview’ as relating to an audio visually recorded interview. The words ‘between a prescribed interviewer and a person to whom this Division applies’ anchor the 31 SO Act s 74EB(b); SO Regs reg 20(1)(c)(i). 32 SO Act s 74EB(a), (c); SO Regs reg 23(1). 33 SO Regs reg 23(7)(a). 34 SO Regs reg 23(7)(b). 35 SO Act s 74C. 36 R v Khy [2025] SADC 111, [97], [150], [166]. -- 15 of 17 -- [2026] SADC 33 14 evidence of an interview to an interview conducted and recorded pursuant to Part 17 Division 3. 53 A cohesive reading of Part 17 Division 3 of the SO Act and s 13BA of the Evidence Act reveals to me an intention on the part of the legislature to create a facility for pre-recording the evidence of vulnerable witnesses with a view to that evidence potentially being admitted in a trial; the evidence is potentially admissible as it is subject to the exercise of a judicial discretion under ss 13BA(1), (3). As I have noted, s 13BA(4)(a) empowers the court to rule the whole or any part of the recording inadmissible. This underscores that the statutory aid to proof of a vulnerable witness’s evidence relates to and is concerned with admission of the pre-recorded evidence – that is, the recording – rather than the content or subject matter of the evidence itself. Parliament cannot, in my assessment, have intended by the introduction of a facility for admitting the evidence of vulnerable witnesses in pre-recorded form to minimise recounting trauma, to preclude the material evidence of such witnesses from being given in the usual manner. 54 The Attorney General’s remarks at the time of the second reading of the Bill are confirmatory of an intention to create an alternative, not exclusive, facility for the admission of the evidence of vulnerable witnesses:37 It is anticipated that the investigative interview will provide a complete and accurate account at the onset of the investigation into the matter. Skilled examination-in-chief may be the only effective way to present the entire prosecution case if an account in an audio visual interview is flawed or plainly inadequate. It may also be that a confident witness, despite their young age or cognitive impairment, does not wish to use special arrangements to testify and may wish to give evidence ‘live’ as opposed through any pre-recorded interview. (emphasis added) 55 If the defendant’s construction is accepted, then an interview conducted with a vulnerable witness which fails to record through a technical fault, which is accidentally over-written or which becomes lost, would result in that witness’s evidence being unable to be placed before a court. That cannot have been the intended reach of the s 74EC inadmissibility provision. I am fortified in this view by the remarks made by Kourakis CJ in obiter in R v Cronin (2018) 131 SASR 111. Having determined that the recording concerned was not an audio visual record of the evidence of the child witness (‘V’) as her face was not visible for most of the recording, his Honour observed that for the purpose of a retrial:38 Another interview which satisfies the pre-condition of s 13BA(3) may be made or V may testify in the ordinary way. (emphasis added) 37 Second Reading Speech, Hansard, 6 May 2015, p.1037. 38 R v Cronin (2018) 131 SASR 111, [5]. -- 16 of 17 -- [2026] SADC 33 15 56 I do not accept the defendant’s submission that the inadmissibility provision applicable to the recording of interviews with suspects, s 74E of the SO Act, which renders evidence of an interview between an investigating officer and a defendant inadmissible in the absence of compliance with the recording provisions or unless the interests of justice require the admission of the evidence despite the non-compliance, indicates the manner in which s 74EC is to operate by parity of reasoning. 57 The first obvious distinction in my mind is that, unlike s 74EC, s 74E does not operate in conjunction with any corresponding statutory provision conferring a discretion to admit the evidence of an interview with a defendant (such as s 13BA relates to the admission of the evidence of a witness in the form of an audio visual record). In this sense, s 74E, unlike s 74EC, stands alone. There is no contextual constraint upon interpreting s 74E as relating to the form and subject matter of a suspect interview. In R v Willmott (No 6) [2025] SASCA 168, her Honour McDonald J observed of the differences between Divisions 2 and 3 of Part 17 of the SO Act that: Although the extended definition of an interview is applicable to both interviews with suspects and vulnerable witnesses, div 2 (suspects) sets out a very different regime to div 3 (vulnerable witnesses). These regimes reflect the policy considerations underpinning the respective provisions. The functions of the protections in place for a suspect are different to the functions and principles of the protections for a vulnerable witness. The purpose of s 74EA is not about protecting a right to silence, but rather is designed to protect the integrity of the evidence of a vulnerable witness at an early stage, avoiding the need for that witness to repeat their account of a traumatic event. 58 On my construction of s 74EC, the substance or content of JY’s first prescribed interview (as opposed to the form it took as an audio visual recording of the interview) is not prima facie inadmissible. It follows that I do not consider that the admissibility of the substance or content of the interview, which is in effect JY’s proof of evidence, falls to be determined by reference to whether the interests of justice require admission of the evidence (per s 74EB(1)(b)). 59 JY’s evidence is admissible. I refuse the application to exclude it. -- 17 of 17 --