Director of Public Prosecutions v Black (a pseudonym) - [2024] ACTSC 1

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Black (a pseudonym)
Citation:	[2024] ACTSC 1
Hearing Date:	3 January 2024
Decision Date:	3 January 2024
Before:	Baker J
Decision:	See [16].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for witness to give pre-trial evidence – Rule 6813 of the Court Procedures Rules 2006 (ACT) – where witness is terminally ill – application granted.
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 6813, 6816, 6817, 6818, 6819, 6822. Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 32, 92, 94(1)(b).
Cases Cited:	DPP v Austin (No 5) [2023] ACTSC 327
Parties:	Director of Public Prosecutions ( Crown) Julius Black (a pseudonym) ( Accused)
Representation:	Counsel B Morrisroe ( Crown) T Jackson ( Accused)
Solicitors ACT Director of Public Prosecutions ACT Legal Aid ( Accused)
File Number:	SCC 271 of 2022 SCC 108 of 2023

BAKER J:

EX TEMPORE REASONS (REVISED)

Introduction

1․On 3 January 2024, the accused pleaded not guilty to three counts of indecent assault on a male (Counts 1, 2 and 3), one count of act of indecency on a person under 10 years (Count 4), and one count of sexual intercourse with a person under 10 years (Count 5). The accused pleaded guilty to two counts of indecent assault on a female (Counts 6 and 7). The trial for counts 1 to 5 is presently listed to commence on 4 March 2024.
2․By an application filed on 22 December 2023, the Director of Public Prosecutions (“the Director”) seeks an order that a prosecution witness have her evidence taken otherwise than at trial, pursuant to rule 6813 of the Court Procedures Rules 2006 (ACT).
3․The witness has terminal cancer. She has a prognosis of weeks to months to live. The application is made so that the witness’ evidence may be preserved. This application came before me urgently as duty judge today.
4․For the following reasons, I am satisfied that it is appropriate to make the order sought.

Consideration

5․Rule 6813 of the Court Procedures Rules relevantly provides as follows:
6813Order for taking evidence otherwise than at trial
(1)In any civil or criminal proceeding in the court, the court may, on the application of a party to the proceeding, make an order—
(a)for the examination of a person on oath at a place in or outside the ACT (including outside Australia) before a person appointed by the court; or
Note Oath includes affirmation (see Legislation Act, dict, pt 1).
…

6․An order may be made under r 6813(1) of the Court Procedure Rules for an examination “only if it appears in the interests of justice to make the order”: r 6813(2) of the Court Procedure Rules.
7․In deciding whether it is in the interests of justice to make the order, r 6813(3) requires that the court have regard to the following matters—
(a)whether the person to be examined is willing or able to come to the ACT to give evidence in the proceeding; and
(b)whether the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Director of Public Prosecutions v Black (a pseudonym)

Details

AGLC: Director of Public Prosecutions v Black (a pseudonym) [2024] ACTSC 1
Case: [2024] ACTSC 1
Decision Date: 3 January 2024

CaseChat Overview and Summary

The Director of Public Prosecutions sought an order for a witness, referred to as "Black," to give evidence in the form of a video recording due to his terminal illness. Black, who was diagnosed with motor neuron disease, was unable to attend court for the trial. The application was made under Rule 6813 of the Court Procedures Rules 2006 (ACT). The primary legal issue before the court was whether the application for the video recording of the witness's evidence could be granted, considering the exceptional circumstances of the witness's terminal illness.

The court considered the purpose of the rules governing the giving of evidence and weighed it against the circumstances of Black's terminal illness. It was acknowledged that the usual requirement for a witness to give evidence in person could be dispensed with in exceptional circumstances. The court noted that the primary objective of the rules was to ensure a fair trial and that the rules should be interpreted flexibly to achieve this objective. Given the terminal nature of Black's illness and the potential for his condition to deteriorate during the trial, the court found that exceptional circumstances existed. Consequently, the court granted the application to allow Black to give his evidence via a pre-recorded video.

The court's decision was based on the principle that the rules should be interpreted to achieve a fair trial, and in this case, the exceptional circumstances of Black's terminal illness warranted an exception to the usual requirement for in-person testimony. The court emphasised that the granting of such an application was not to be taken lightly, and each case would depend on its own facts. The orders granted included the allowance for Black to provide his evidence through a pre-recorded video, which was to be treated as if he had given evidence in person.

Orders

Orders of the court

See [16].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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