R v BL
[2017] ACTSC 16
•12 December 2016
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 evidence is put before a jury, the trial judge is required to give the jury certain directions about the fact that evidence is to be given in this way. Section 40U(2) of the Evidence (Miscellaneous Provisions) Act is as follows:
(2)The court must tell the jury that—
(a)the witness gave the evidence by audiovisual link at a pre-trial hearing; and
(b)admission of the audiovisual recording is a usual practice; and
(c)the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the evidence was given in that way.
Similar directions must be given when a witness gives evidence by audiovisual link from a remote witness room (s 46 of the Evidence (Miscellaneous Provisions) Act), and when a witness gives evidence in the presence of a support person (ss 38E(7) and 101(6) of the Evidence (Miscellaneous Provisions) Act); relevantly, the jury must be told that this is a usual practice, and that the jury must not draw any inferences against the accused, because of the way the evidence was given.
The contents of the recording
I had not at that stage seen the audiovisual recording of the pre-trial evidence, but I was told (and this was not disputed) that when D gave her evidence in the pre-trial hearing, her dog was on the floor near her feet. I was also told that the dog was not visible or even audible in the audiovisual recording, and nor is the dog’s presence otherwise discernible. This was borne out when the recording was subsequently shown to the jury.
Application by prosecution
The Crown invited me to tell the jury about the dog’s presence, and then to give the jury a direction roughly equivalent to the one that is given when a witness gives evidence from a remote witness room or when a witness has a support person with her or him while giving evidence.
Defence counsel objected to any mention of the dog in the presence of the jury.
After brief consideration, I declined to mention the dog to the jury. My reasons for that decision are set out below.
Consideration
Refshauge J’s reasons
Refshauge J’s consideration of whether the dog could be present at all addressed, among other things, the possible impact of the jury’s ability to see the dog while D was giving her evidence. His Honour said, in this context:
97.There were two matters of prejudice asserted on behalf of Mr BL. The first was that the presence of [the dog] will evoke sympathy in the minds of the jury. The second is that the presence of [the dog] may distract the jury.
98.As to the first, Mr BL asserted that [the dog] is “an attractive looking dog” and her presence could give an emotional impression to the jury which would add affirmatively to the reception that the jury would give to the complainant’s evidence beyond the worth of the actual evidence she gives.
99.In my view, this is no different from any other circumstance that may evoke an emotional reaction, such as the clothes a witness wears, whether she weeps when giving evidence of intimate or traumatic events or circumstances and so on. Indeed, this may even include the actual events described by the witness.
100.While some of those are matters of demeanour which a jury can properly take into account, the jury is conventionally directed to apply an objective standard to the analysis and consideration of the evidence.
101.Thus, in the standard suggested directions set out in Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (Judicial Commission of New South Wales, Sydney, 2007), looseleaf, it is suggested that, after empanelment, a jury is told:
Before you are empanelled, I asked that any person who could not be objective in their assessment of the evidence to ask to be excused.
102.In the summing up to the jury, it is recommended that the jury be told:
You must, as a jury, act impartially, dispassionately and fearlessly. You must not let sympathy or emotion sway your judgement.
103.The direction that I usually give a jury on this issue is as follows:
In acting fairly also, you must put out of your minds any irrelevant considerations. The obligations to act fairly requires you to be completely dispassionate. You must not allow any considerations of either sympathy or prejudice to affect you. You must act with complete impartiality and without letting matters of sentiment or emotion play any part.
104.In an appropriate case, such as child sexual assault prosecutions, I may add:
This is important in this case for it involves claims of child sexual abuse about which there are strong views in the community. You must, however, not allow any personal view you have about such matters to sway you from assessing the evidence as fairly and objectively as you can. You should not let any prejudice prevent you from making a careful objective assessment of the evidence.
105.In my view, such a direction, tailored for the particular circumstances, would meet any possible prejudice that the sight of the dog might cause by evoking any kind of sympathy or empathy.
106.It needs also to be borne in mind that juries are also often warned that, while they can and should take into account the demeanour of a witness, they should be careful as they do not know how specific witnesses react and that it is usually preferable to consider the evidence itself very carefully.
107.In any event, I am not certain that the effect of the sight of the dog would be as suggested. In my view, juries in this Territory are conscientious and able to evaluate evidence carefully and objectively. This is reinforced by the conventional directions given to them which I have set out above.
108.I am not satisfied that the presence of [the dog], even if a beautiful looking dog, will attract sympathy for the complainant and certainly not so much as to divert the jury’s attention from its task. The trial judge, however, should direct the jury before the audio-visual recording of the pre-trial hearing is played that the jury must disregard the presence of [the dog] and not take into account any consideration of sympathy or prejudice that might otherwise be engendered.
In summary, his Honour concluded that if D was permitted to have her support dog with her when she gave evidence, the jury would need to be given directions intended to ensure that the presence of the support dog did not prejudice them in favour of D or against the accused.
Presumably it was these conclusions of Refshauge J that induced the Crown to seek directions of the kind his Honour had foreshadowed in his judgment.
Because in the event the dog could not be seen or heard, it did not seem to me that anything needed to be said. However, the Crown having made the application even though the dog’s presence would not be apparent to the jury, I was required to consider the issue and explain my conclusions.
Legislation
I could find nothing in the provisions of the Evidence (Miscellaneous Provisions) Act relating to the pre-trial hearing arrangements that seemed to address, or even be relevant to, the question of what, if anything, should or should not be said about the dog’s presence in the remote witness room. No apparently or possibly relevant provision was drawn to my attention.
There is nothing in that Act that appears to require that the jury be told about the presence of a dog (as distinct from the presence of a support person) in the remote witness room if they would not otherwise be aware of it.
Impact of the dog’s presence in the remote witness room
Refshauge J said at [90]:
I am satisfied that [the dog] will alleviate the effects of the complainant’s disability which, on the evidence, may well compromise her ability to give the evidence she should be able to give as best she can.
I accept that the dog’s presence would have had a positive effect on D’s capacity to give her evidence.
There was no suggestion that the dog’s presence would have had a negative or unfair effect on the content of the evidence D gave (for instance, by coaching her in some way), such that the jury needed to be told about the dog’s presence in order to be able to assess D’s evidence fairly.
Risks of telling the jury about the dog
Telling the jury about D’s support dog could carry the same risk to the accused as arises when a jury discovers that a witness has a support person in the remote witness room; that is a risk that must be addressed by a specific direction. The presence of a support person, and the witness’s reliance on the support person, might among other things engender a suspicion that the witness cannot cope, without support, with giving evidence against the accused, and might thereby create sympathy for the witness or prejudice against the accused. The presence of a support dog might also produce a further emotional response, involving a feeling of warmth towards D that is not based on her need for the dog’s support but on the affection she would be presumed to have for the dog and perhaps even on the dog’s presumed affection for her.
In his judgment (quoted at [14] above), Refshauge J rejected the argument that D should not be allowed to have her dog with her while she gave evidence because of the emotional impact on the jury of the dog’s presence, concluding that such possible impact could be addressed by other directions to the jury. However, this is not a good reason for telling the jury about the presence of the dog if that fact would not otherwise be apparent to the jury.
Content of possible direction about the dog’s presence
If the dog were mentioned to the jury, the jury could then be given directions of the kind envisaged by Refshauge J, which are, as his Honour pointed out, standard directions about how jurors assess witnesses or about the need to avoid being influenced by sympathy or prejudice (directions which this jury would be given irrespective of the dog’s presence). However, it would be impossible to give a direction to the jury that was relevantly equivalent to the directions generally required to be given in relation to the presence of a support person in the remote witness room. That standard direction is that:
(a) a witness having a support person in the court while giving evidence is a usual practice; and
(b) the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the support person is present.
The presence of a canine companion for a witness, in the remote witness room or elsewhere, is not a usual practice, and it would not be appropriate to tell a jury that it was. There is a risk that the direction not to draw adverse inferences from the presence of the support dog, unaccompanied by the assertion that having a support dog is a usual practice, would carry considerably less weight.
Conclusions
In summary, in the circumstances that the dog’s presence would not be revealed by showing the jury the recorded pre-trial evidence, I concluded that telling the jury about the dog’s presence:
(a)was not required for any practical reasons;
(b)was not required by any identifiable law;
(c)was not necessary as a matter of fairness to the complainant; and
(d)would have the potential to be unfair to the accused in a way that could not be readily addressed by particular jury directions.
Accordingly, I declined to mention the dog to the jury at all.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Nishadee Perera Date: 10 February 2017 |
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