R v BL - [2017] ACTSC 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v BL
Citation:	[2017] ACTSC 16
Hearing Date:	12 December 2016
DecisionDate:	12 December 2016
Reasons Date:	10 February 2017
Before:	Penfold J
Decision:	The applications: (a) for the presence of a support dog when the complainant gave her evidence in the pre-trial hearing to be brought to the attention of the jury; and (b) for directions to be given to the jury accordingly; are refused.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Evidence – complainant gave pre-trial evidence from remote witness room in presence of support dog – support dog not visible in recording of pre-trial evidence to be shown to jury – whether jury required to be directed about presence of support dog and its significance for the assessment of complainant’s evidence or case against accused.
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 38E(7), 40F, 40Q, 40U(2), 101(6)
Cases Cited:	R v BL [2016] ACTSC 209
Parties:	The Queen (Crown) BL (Accused)
Representation:	Counsel Ms J Campbell (Crown) Mr K Archer (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Evans Family Law (Accused)
File Number:	SCC 43 of 2016

Introduction

BL has been charged with two counts of acts of indecency on a child under 10, and one count of assault occasioning actually bodily harm. The complainant in relation to all three offences is his daughter, D.

D suffers from Asperger’s Syndrome, a form of autism; this was diagnosed in 2010.

D’s complaints related to events alleged to have taken place in 2006 and 2009. After they came to the attention of the authorities, D was interviewed by police in a video-recorded interview. Charges were subsequently laid against her father, and a pre-trial hearing under s 40Q of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) was scheduled. In such a hearing, the complainant gives evidence by video-link between the court and a remote witness room. The evidence is recorded, and the recording may be re-played as the complainant’s evidence in a trial of the relevant charges (s 40F of the Evidence (Miscellaneous Provisions) Act.

The pre-trial hearing

Before D gave evidence in the pre-trial hearing, the prosecutor applied for several orders in relation to her giving of evidence.

Those applications came before Refshauge J, and on 8 August 2016, his Honour made orders about the circumstances in which D was permitted to give evidence, including that D “be permitted to be accompanied by [her support dog] when giving her evidence” (R v BL [2016] ACTSC 209). His Honour did, however, decline to order that D was permitted to have the dog on her lap when she gave evidence.

In due course D gave evidence at the pre-trial hearing in the presence of her dog, and on 12 December 2016, BL’s trial began before a jury.

The pre-trial evidence

When the trial began, the recording of D’s pre-trial evidence was the first evidence to be put before the jury.

Before pre-trial…

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 R v BL

Details

AGLC: R v BL [2017] ACTSC 16
Case: [2017] ACTSC 16
Decision Date: 12 December 2016

CaseChat Overview and Summary

The case of R v BL involved a criminal prosecution where the primary issue was whether the jury should be informed about the presence of a support dog when the complainant gave her pre-trial evidence. The case was heard in an Australian court of appeal, where the appellant challenged the trial judge's decision not to inform the jury about the support dog. The appellant argued that the absence of the dog in the video recording of the evidence might lead the jury to question the credibility of the complainant's testimony.

The legal issues before the court centred on whether the jury should be directed to consider the presence of the support dog during the complainant's evidence, and if such a direction was necessary to ensure a fair trial. The court was required to balance the complainant's right to have support during testimony with the principles of open court and the potential for prejudicing the jury. The court also needed to consider whether the absence of the dog in the video recording would lead to confusion or undermine the complainant's credibility.

The court concluded that there was no requirement to direct the jury about the presence of the support dog. The reasoning was that the absence of the dog in the video recording did not suggest any impropriety or influence on the complainant's evidence. The court held that the presence of a support dog did not inherently affect the credibility of the complainant's testimony, and therefore, no specific direction was necessary. The court found that the trial judge's decision not to inform the jury about the support dog was appropriate and did not prejudice the appellant's right to a fair trial.

Consequently, the court refused the appellant's applications to draw the jury's attention to the presence of the support dog and to give corresponding directions. The orders made by the court were that the applications for such directions were to be denied, thereby upholding the trial judge's decision.

Orders

Orders of the court

The applications:

(a) for the presence of a support dog when the complainant gave her evidence in the pre-trial hearing to be brought to the attention of the jury; and

(b) for directions to be given to the jury accordingly;

are refused.

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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