Should the ODPP electronically record proofing conferences with prosecution witnesses? The ruling of her Honour Judge Loury QC in R v MK [2020] QDCPR 118 has thrown a spot-light on the issue.  Since the High Court’s landmark judgment in McKinney v R (1991) 171 CLR 486, the utility of electronic recording has been beyond doubt.  In short, electronic recording is a process by which the making of oral witness statement may be unmistakeably and reliably corroborated.

Following MK, it appears that there is every reason for the ODPP to adopt the practice, and very little reason for it not to.  In MK, Judge Loury QC found that evidence of a complainant child had been irremediably corrupted in the course of a Crown proofing conference. Central evidence of the child was excluded. The child’s pre-recording had to be adjourned. The child was re-interviewed. The Crown ultimately discontinued charges.  The child in MK was vulnerable. However, vulnerability to suggestion, pressure (intended or unintended) and/or gratuitous concurrence is a trait not confined to child witnesses.

The Crown Prosecutor in MK made no notes of the proofing conference. He had an imperfect recall of pivotal aspects of the events. The conference was not electronically recorded. The only record was a contemporaneous note prepared by ‘an employee’ of the ODPP.  Examination of the note, which is appended to the judgement, reveals 1½ pages of neat, type-written dot points. Many practitioners in crime might express a view that the proofing note in MK is of a significantly higher quality than many records of Crown proofing conferences disclosed in indictable prosecutions.

At [55], Her Honour Loury QC DCJ said:-

The only record of the conference is the anonymised conference note which is attached to this judgement. It is apparent from the evidence of the Crown Prosecutor before me that he considered Tom was at times, confused. He did not always appear to understand the questions asked and sometimes answered with gestures such as a thumbs-up gesture. Because the process wasn’t recorded it is unknown when and about what he may have been confused.(Emphasis added).

And, at [57]:-

The circumstances surrounding the significant change in the evidence of Tom is impossible to properly assess because the conference was not recorded and because the Crown Prosecutor has no real recollection about Tom’s confusion…Accordingly in my view it would be inexpedient in the interest of justice for the evidence contained in the complainant’s two interviews with police to be admitted. I exercise my discretion to exclude the interviews of Tom dated 11 July 2019 and 30 September 2020”. (Emphasis added).

The issue of whether proofing conferences should be electronically recorded is separate and distinct from questions of disclosure.  Proofing conferences are a juncture in criminal proceedings at which the evidence of key prosecution witnesses can materially change. The existence of an independent, objective record of exactly what was said and done is a desirable safeguard in the event independent scrutiny of a proofing conference is required. And, modern technology makes electronic recording and storage simple and inexpensive.