QUESTION of LAW RESERVED (NO 2 of 1997) No. SCCRM-97-312 Judgment No. S6563

[1998] SASC 6563

QUESTION OF LAW (NO 2 OF 1997)

Court of Criminal Appeal
Coram:  Doyle CJ, Cox and Williams JJ

Doyle CJ

Four questions have been reserved for consideration by the Full Court. The power to reserve the questions is given by section 350(1) of the Criminal Law Consolidation Act, 1935.

The questions relate to matters which arise quite frequently in the course of criminal trials.  It is desirable for this Court to give such guidance as it can on these issues although, as will appear, there is a limit to what the Court can do.

The questions are as follows (they relate to provisions of the Evidence Act 1929 ("the Act"):-

1. If a "vulnerable witness" (sections 13(10)a-c) makes a request either personally or by counsel to give evidence by means of a closed circuit television and/or behind a one-way screen or partition on the basis that the witness would be embarrassed, distressed, intimidated by the court room atmosphere or for some other proper reason, should such request be granted in terms as sought unless the defence can demonstrate that such an order would prejudice the accused in the proceedings?

1. Must the prejudice (sections 13(3)) relate to consequences over and above those which would necessarily result from the making of such an order in any event?

1. Is the applicant required to adduce expert or other evidence in support of the application?

1. If the "vulnerable witness" gives evidence on the application, should that evidence be given by way of closed circuit television and/or behind a one-way screen or partition.

To understand the questions, and the issues that arise, it is necessary to consider section 13 of the Act as a whole. Section 13 provides as follows:-

"13. (1)      If it is practicable and desirable to make special arrangements for taking evidence from a witness in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of a courtroom, or for any other proper reason, the court should, subject to subsections (3) and (4), order that special arrangements be made for taking the evidence of that witness.

1. The Court may, for example, make orders of the following kinds:

(a)     an order that the evidence be given outside the courtroom and transmitted to the courtroom by means of closed circuit television;

(b)     an order that a screen, partition or one-way glass be placed to obscure the witness’s view of a party to whom the evidence relates or some other person;

(c)     an order that the witness be accompanied by a relative or friend for the purpose of providing emotional support.

1. An order must not be made under subsection (1) if the order would prejudice any party to the proceedings.

1. An order must not be made under subsection (1) if its effect would be -

(a)     to relieve a witness from the obligation to take an oath;

(b)     to relieve a witness from the obligation to submit to cross-examination;

or

(c)     to prevent the judge, or (in the case of a trial by jury) the jury, from seeing and hearing the witness while giving evidence.

1. If the effect of an order under subsection (1) would be to prevent the defendant in criminal proceedings from seeing and hearing a witness while giving evidence, the order may only be made if there is no other practicable way to protect the witness.

1. If a witness is accompanied by a relative or friend for the purpose of providing emotional support, that person must be visible to the parties, the judge and (in the case of a trial by jury) the  jury while the witness is giving evidence.

1. If, on a trial by jury, a court makes special arrangements for taking the evidence of a witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.

1. An order under this section may be made, varied or revoked on the court’s own initiative, or on the application of a party or witness.

1. If evidence is to be given in criminal proceedings by a vulnerable witness, the court should, before evidence is taken in the proceedings from the witness, determine whether an order should be made under this section.

1. In subsection (9) -

‘vulnerable witness’ means -

(a)     a witness who is under 16 years of age;

(b)     a witness who suffers from an intellectual disability;

(c)     a witness who is the alleged victim of a sexual offence to which the proceedings relate;

or

(d)     a witness who is, in the opinion of the court, at some special disadvantage because of the circumstances of the case, or the circumstances of the witness."

The purpose of section 13 of the Act

Cox J dealt with this succinctly in R v Griffis (1996) 67 SASR 170. He said (at 177):-

"The policy behind section 13 is obvious. The special needs of witnesses require more consideration by the courts than they may perhaps have had in the past."

Put a little differently, the purpose of section 13 is to deal with, as far as possible, matters that might make it difficult for a witness to give his or her evidence in a courtroom, with all that that entails - the presence of the accused (if it is a criminal trial), the presence of the public, the disclosure of intimate personal matters, subtle and not so subtle forms of intimidation by spectators, the impact on a child of the atmosphere of a courtroom, and so on.

No doubt a further purpose is to ensure that the circumstances of the witness, and the needs of the witness, are balanced against the requirements of justice.  The court has to consider what is "practicable and desirable."  That directs attention not just to the practical limits upon what the court can do, but also to the fact that the court is administering justice, and must consider the interests of the parties to the case, as well as the interests of the witness.

The operation of section 13

The section applies to criminal and civil cases.  It applies in all courts.  Its scope and operation should not be considered as if it applied only to criminal cases, or only to the higher courts, although the questions reserved arise out of an application by a vulnerable witness in a criminal trial.

Section 13 confers a power on the court. It is a power to be exercised, usually, before a witness gives evidence. The exercise of the power will require the judge to make an assessment of many matters. These will include the nature of the case, the nature of the evidence to be given, the layout of the court, the people likely to be in court, the atmosphere of the case in the courtroom, the circumstances of the witness in question and, no doubt, other matters.

These are matters which the judicial officer hearing the case is best placed to assess. Indeed, the range and the nature of the matters to be considered are such that sometimes only the judicial officer hearing the case will be able to assess them adequately. An appeal court will often not be able to put itself in the position of the judicial officer hearing the case at the time the request is made. An order made under section 13 will rarely be interfered with by an appeal court.

The section is intended to operate in the course of civil and criminal cases.  Parliament is to be taken to have had in mind, in general terms, how those cases are conducted, and the need to consider the efficient dispatch of the work of the courts as well as the needs of the witness and the interests of justice.

Usually an order will be made, if it is to be made, before a witness begins to give evidence.  Usually, the court will consider the making of an order only if one of the parties raises the issue.  That does not mean that the court cannot raise the issue itself, merely that if no-one raises the issue, the witness would usually be dealt with in the ordinary way.  However, in the case of a vulnerable witness in criminal proceedings, the court must address its mind to the issue before the witness begins to give evidence.  If the parties do not raise the matter, the court must raise it of its own initiative.

Parliament could not have intended that the court would deal with a request for special arrangements in a manner that visited upon the witness the very difficulties that section 13 aims to prevent. In my opinion, Parliament must have intended that the court have power to deal with an application or issue under section 13 without hearing evidence from the witness in question and without subjecting the witness in question to some other form of enquiry.

In my opinion a court is empowered to decide an application under section 13 on such material as the court sees fit. That material need not be evidence, nor need it be material that would be admissible as evidence in the proceedings. In the usual case the court can decide an application, and should be able to decide an application, on the basis of information provided orally by counsel. In an exceptional case, the court might require some material, such as a written report, to substantiate a need attributed to a witness. In some cases, the court might be assisted by asking the witness a few questions, not on oath, for which purpose the witness might be placed close to the bench, just as some judges question potential jurors seeking an exemption from jury service.

I stress, that the procedure to be adopted is for the court to decide.  However, I would anticipate that, particularly in the case of a witness such as a child, it would rarely be necessary to go beyond the information provided by counsel, because applying everyday experience and common sense, that information should be sufficient for the court to decide the application.

The court should not allow the consideration of an application under section 13 to cause a significant interruption to the flow of the case in which the matter arises. Of course, the court must hear submissions from both parties. But the decision is not to be made after some kind of mini trial or enquiry in which each side advances material and tests it.

In my opinion, in the usual case, having heard both counsel briefly, the court should decide an application by acting upon a plausible and reasonable request.  The court does not have to embark upon an enquiry and come to a conclusion on the balance of probabilities.  It is sufficient that the request is plausible and reasonable.  In an exceptional case, opposition to the making of an order might persuade the court that some further information or explanation should be provided.  Opposition to the making of an order might persuade the court that it is not desirable to make the order.  Everything would depend upon the circumstances.  But the section is to be applied expeditiously, and without significant interruption to the flow of the case, and also without protracting the pre-trial procedures, should it arise at that stage.

It is undesirable that a witness who has a significant concern about giving evidence should wait until the last minute to know whether a request for special arrangements will be granted. The practice has been, in criminal cases, for the order to be made by the trial judge. Sometimes the identity of the trial judge is not known until very close to trial. That means that the courts should approach applications under section 13 in a manner that makes the outcome of an application reasonably predictable.

It follows that when common sense suggests to the court that the application is plausibly made, while the court must hear any opposition, the order will usually be made without any further enquiry, unless the reasons for any opposition to the order cause the court to have some doubts.  For example, it seems to me appropriate to grant an application in a criminal case in which the accused is charged with a sexual offence, and the victim expresses apprehension about giving evidence from a witness box close to the accused or,  in a case involving a young child who, the court is informed, will be intimidated by the courtroom and will be unable to give evidence adequately in the usual way.  It is not necessary for the court to seek material to verify plausible applications such as these.  There will be many cases in which, in the light of the nature of the case and the circumstances of the witness, the application will be both plausible and reasonable, and in such cases, subject to any specific matters raised in opposition, the court should grant the application without further enquiry.

In saying that I am influenced by the clear statutory policy evinced by section 13 that an order should be made when it is desirable to do so.

An order is not to be made "... if the order would prejudice any party to the proceedings": section 23(3). That must mean, an order is not to be made if the making of the order would cause prejudice beyond that necessarily involved by making the order. Often the making of an order will cause no prejudice at all. The use of a one way screen between the witness and the accused has little potential for prejudice to the accused, as long as the jury is appropriately warned not to draw any inference adverse to the accused: section 13(7). As to that, I refer to what Cox J said in R v Griffis (supra). I believe that as the use of screens and close circuit television becomes more common, some of the concerns expressed about these devices will disappear.

I add that it is difficult to identify circumstances in which there would be discernible prejudice to a party from the making of an order, over and above that necessarily inherent in the making of the order. But that does not mean that, in considering an application under section 13, the court pays no attention to the impact upon the trial of the making of an order. The court will do that as part and parcel of the process of considering whether it is desirable to make special arrangements.

Question (i)

In my opinion the court is not to order that special arrangements be made simply because a request is made, even if such a request is made on behalf of a vulnerable witness.   If Parliament had intended to give to a witness the right to have special arrangements made, Parliament could easily have said so.  It has not said that.

If a request for special arrangements is made, the court must consider the request and any arguments put in opposition to the request.  It must consider whether any supporting material should be required (I have already said that this would be exceptional), and the court must consider whether any enquiry should be made of the witness in question by the court (this also will be unusual, at least in the case of a child).

The fact that a plausible request should be acceded to means that usually a request in respect of a vulnerable witness will be granted.  But the request is not to be granted simply because it was made by a vulnerable witness.  The court must still consider the matter.

It is not necessary for a party to show that the party would be prejudiced by the making of an order, to persuade the court not to make the order.  The party might persuade the court that the request should not be acceded to for other reasons, or at least that some further enquiry should be made.  However, as I have already said, it is not the task of the court to embark upon some form of enquiry upon contested material from each side.  The court should attempt to decide the application upon what counsel says, which usually should suffice.

I would answer question (i) as follows:-

A request for special arrangements for taking evidence from a vulnerable witness will be granted if, having regard to the circumstances under which the evidence will be given, the nature of the evidence, the reason for the request and any other matter that the court considers to be relevant, the court considers that the reason for the request is plausible and is a sufficient reason to make special arrangements.  In dealing with a request for special arrangements for the taking of evidence the court will give due weight to Parliament’s statement that an order should be made when it is practicable and desirable to do so.

Question (ii)

In my opinion this question should be answered "Yes."

I have already explained why that is so.

Question (iii)

In my opinion this question should be answered as follows:-

No.  In an exceptional case the court, if it is unable to decide an application without doing so, may require evidence or some other material in support of an application.

Question (iv)

This question relates to the procedures to be followed if a request for special arrangements is made on behalf of a vulnerable witness, and the court decides that it is necessary to hear evidence from the vulnerable witness in support of the application.

I make the point, once again, that in my opinion that would be an  exceptional situation.  However, should it arise, the court will have to decide how the witness is to give the evidence in support of the application.  Despite the appearance of pre-judgment of the application, in my opinion, the vulnerable witness should usually be permitted to give the relevant evidence under the special arrangements requested, otherwise the witness will be subjected to the very disadvantage that the section is intended to avoid.  Everything that can be done to avoid that situation arising should be done.

I would answer this question as follows:-

If a vulnerable witness is required by the court to give evidence in support of an application for the making of special arrangements for taking evidence from that vulnerable witness, the court must decide the circumstances under which the evidence will be given, but ordinarily the court should permit the evidence to be given under the special arrangements sought on behalf of the vulnerable witness.

Cox J

I agree with the reasons of the Chief Justice and the answers that he has proposed. 

Williams J

I agree with the answers proposed by the Chief Justice for the reasons which he has given.