Section 34CA of the Evidence Act 1929 (SA) permits the admission of a videotaped police interview with a child complainant as a 'statement' to prove the truth of facts asserted, and the videotape may be tendered as an exhibit (distinguishing the position under s 21AM of the Queensland Evidence Act considered in Gately). The prosecution may examine the protected witness in chief on the same matters covered in the admitted statement. However, the jury must be directed that the assessment of the out-of-court statement and the sworn evidence must have regard to the different circumstances relevant to each category, and a bare direction that they are to be treated 'in exactly the same way' is insufficient. A direction that complaint evidence negatives a suggestion of recent invention is a misdirection where that issue has not been raised. Cross-examination of an accused on a police interview not tendered as part of the prosecution case, where the interview is a mixed statement, creates unfairness by allowing the prosecution to use inculpatory material without putting exculpatory components before the jury. Duggan J and White J differ on the proper construction of s 34CA(2), with the question left open for legislative resolution.
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