R v BL
[2016] ACTSC 209
•2 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BL |
Citation: | [2016] ACTSC 209 |
Hearing Dates: | 26 July and 2 August 2016 |
DecisionDate: | 2 and 8 August 2016 |
Before: | Refshauge J |
Decision: | Made on 2 August 2016 1. The audiovisual recording of the Evidence-in-Chief Interview of DL on 25 June 2015 be edited to remove the struck out portions in the transcript annexed (Annexure A) to the affidavit of Jane Campbell, sworn 21 July 2016 being part of the answer to question 24, questions 23, 43-45, 47-50, 171-198, 200-201 and 254-349 and the answer to those questions. 2. A member of the Australian Federal Police be permitted to edit the Evidence in Chief Interview of DL on 25 June 2015 in accordance with Order 1. Made on 8 August 2016 1. DL be permitted to be accompanied by the dog Tuppence when giving her evidence. 2. Subject to any contrary direction by the judge presiding at the pre-trial hearing, DL may wear a cap or visor when giving evidence. 3. The question of whether DL is permitted to use “fiddle toys” when giving evidence is referred to the judge presiding at the pre-trial hearing. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Evidence – recorded evidence – police interview – editing CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Evidence – special arrangements for witness – child witness – witness with disability – sexual offence proceedings – presence of assistance dog – dog to reduce anxiety and sensory overload – dog in training – no accreditation scheme for assistance animals required by legislation – fair trial – reduce strain on witness giving evidence – possible prejudice – evoke sympathy of jury – distract jury – jury directions – evidence recorded – recording can be edited before trial CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Evidence – special arrangements for witness – witness with disability – sensitivity to glare – wear cap or visor – fair trial – importance of seeing witness’ eyes – clear sight of face necessary |
Legislation Cited: | Disability Discrimination Act 1992 (Cth), ss 8(1), 9(2), 9(2)(c), 23 Domestic Animals Act 2000 (ACT), ss 104 Court Procedures Rules 2006 (ACT), r 6906 |
Cases Cited: | Attorney-General’s Reference (No 3 of 1999) [2001] 2 AC 91 Elson v Ayton (2010) 241 FLR 178 |
Texts Cited: | Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (Judicial Commission of New South Wales, 2007) M Jones and T Crocker, Responding to Sexual Assault: the challenge of change (ACTDPP and AFP, Canberra 2005) R Pattendon, Judicial Discretion and Criminal Litigation (Clarendon Press, 2nd ed, 1990) |
Parties: | The Queen (Crown) BL (Accused) |
Representation: | Counsel Ms S Gul (26 July 2016) (Crown) Ms J Campbell (2 August 2016) (The Crown) Mrs A Evans (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Evans Family Lawyers (Accused) | |
File Number: | SCC 43 of 2016 |
REFSHAUGE J:
BL is accused of two counts of committing an act of indecency on his daughter, the complainant, in 2009 and also of assaulting her occasioning her actual bodily harm in 2006. The trial of these charges has not yet been listed but a pre-trial hearing under Div 4.2.2B of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) has been listed for hearing on 11 August 2016.
I have been asked to consider two applications by the Crown. The first relates to recorded evidence relevant to the pre-trial hearing and the second relates to special arrangements being sought for the complainant at the pre-trial hearing.
Recorded evidence
As is now common in such proceedings, the evidence of the complainant who, at the time of the alleged offences, was under the age of ten but is now fifteen, will, in part, be presented by the playing of an audio-visual recording of an interview with her conducted by appropriately qualified police officers in accordance with Div 4.2.2A of the Evidence (Miscellaneous Provisions) Act (the police interview).
Under s 40F of that Act, the audio-visual recording of the police interview is admissible as the complainant’s evidence-in-chief. The court, however, has power to refuse to admit all or part of it. Further, s 40M of the Act makes it an offence to erase any part of the tape. Thus, where there is some inadmissible evidence in the recording, it is preferable that it be edited prior to being played but it can only be edited with leave of the court.
Clearly, the accused is not present at the police interview and so there will, at that time, be no objection made to any answers given by the complainant, even if they are inadmissible in any subsequent trial. This is not because the police are seeking to adduce such inadmissible evidence, but because, particularly at that stage of the investigation, the police officers cannot necessarily be expected to know what may be admissible and what may not, especially as the precise terms of the trial, indeed, at that stage, even the precise charges that may be laid, may not be clear.
As is also common, a transcript of the police interview has been prepared and lawyers for both the Crown and the accused have had an opportunity to consider it. As a result, as not infrequently happens, the Court is asked to grant leave to have the recording of the interview edited to remove parts of it that are not admissible at the trial.
It is desirable, though not entirely necessary, that this be done prior to the pre-trial hearing as, under s 40S of the Evidence (Miscellaneous Provisions) Act, the recording may be played at the pre-trial hearing before the complainant gives any further evidence or is cross-examined. Though this is not mandated. The recording of the police interview, edited or not and played at the pre-trial hearing or not, is, nevertheless, admissible at trial.
The only problem with the recording of the police interview not being played at the pre-trial hearing is that the presiding judge will not have seen and heard it. This may restrict the response that can be made to any objections to any questions asked at the pre-trial hearing as a result. This will be ameliorated by the availability of a transcript, but if there are any issues about the complainant’s demeanour or any conduct or actions during the police interview, it will be a little more difficult to deal with them.
In this case, some answers were given by the complainant in the police interview which disclosed events not the subject of the present charges and which are clearly not relevant to the present indictment and the Crown does not propose to rely on them for the trial.
Accordingly, I have been asked to make the following orders:
(a) that the audio-visual recording of the interview of the complainant on 25 June 2015, with certain prescribed persons at the Winchester Police Centre, be edited to remove certain portions of the interview that are shown as struck out in the transcript of the recording annexed to the affidavit of Jane Campbell sworn 21 July 2016;
(b) a member of the Australian Federal Police be permitted to edit that recording to remove the material referred to in order (a).
The reasons expressed for the editing as noted above (at [9]) mean that those portions of the police interview could not rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in these proceedings.
Thus, that evidence is not relevant evidence within the meaning of s 55 of the Evidence Act 2011 (ACT). As a result, it would not be admissible in the trial.
The accused consented to the editing as proposed and, accordingly, I made the orders sought. These are my reasons.
Application for special arrangements
Since 2003, special arrangements have been made by amendment to the Evidence (Miscellaneous Provisions) Act to ameliorate the stress placed on children and vulnerable witnesses by having to give evidence. These arrangements were further extended in 2008. They include the recording and admission of the certain police interview referred to above (at [3]) and the giving and recording of certain evidence in proceedings concerning sexual and personal violence offences earlier than the trial, which is known as a pre-trial hearing.
The holding and conduct of a pre-trial hearing, where evidence is given and recorded before the trial, is regulated by Div 4.2.2B of the Evidence (Miscellaneous Provisions) Act.
Under the arrangements for the pre-trial hearing, the complainant (and other specified witnesses) in sexual offence proceedings, such as these proceedings, may give evidence from a remote room that is not the court room, though, for certain purposes, it is deemed to be the court room. See s 43(4) of the Act.
Under s 40R of the Evidence (Miscellaneous Provisions) Act, only certain persons are permitted to be present in the court room when there is a pre-trial hearing. The court, however, can permit anyone whom it considers appropriate to be present in the court room.
While the remote room is, while the witness (including the complainant) is giving evidence, taken to be part of the courtroom, it is under the control of the judge. The judge can decide, under s 44 of the Evidence (Miscellaneous Provisions) Act, to make orders about who can be present in the remote room and who may not be present. Under s 38E or s 101 of the Act, the court must, on application by a party, order that a witness in certain specified proceedings (s 38E(1)) or a child or a witness with a disability (s 101) be permitted to have within the sight of the witness a person, known as a support person, in the remote room while the witness is giving evidence.
There are, however, no other express provisions for anything else to be present in or excluded from the remote room.
I have now been asked to make the following orders:
1. That the assistance dog, named Tuppence, be permitted to be in the remote room with the complainant when she gives evidence;
2. That the complainant be permitted to have the assistance dog, named Tuppence, sit on her lap or have other physical contact with the dog while she gives evidence;
3. The complainant is permitted to hold objects, such as fiddle toys, when she gives evidence.
4. The complainant be permitted to wear a visor or cap when giving evidence.
Evidence on the application
The application was supported by an affidavit of the prosecutor in the office of the ACT Director of Public Prosecutions (the Crown’s affidavit) and oral evidence of the person training Tuppence. I read that affidavit.
Certain documents were admitted into evidence and BL made an affidavit (Mr BL’s affidavit), which I also read.
From that material, I make the following findings.
The complainant has been diagnosed with High Functioning Autism and Generalised Anxiety Disorder. I accept that this is properly described as a disability of which I can take cognizance. She presently has assistance from the dog, Tuppence, but the dog is in training although it has not yet been certified in any way as an assistance dog.
Tuppence and fiddle toys are used by the complainant to reduce anxiety and sensory overload which are likely to be experienced by her when giving evidence.
The complainant is also very sensitive to external stimuli and wears a visor or cap to reduce the glare of strong lights which are likely to be experienced by her when giving evidence in the remote room because of the need for visibility in that room.
Dr Claire Pattison, Consultant Child and Adolescent Psychiatrist, initially saw the complainant in 2010 but re-engaged with her in 2013 and has seen her more frequently since then.
She reported, and I accept, that:
[the complainant] struggles to manage her anxiety and frequently becomes overwhelmed. In this instance she shuts down and cannot function at all. She cannot think clearly and process information. She is also very sensitive to external stimulus such as noises. Again she is easily overloaded.
I am concerned that in any court proceedings she will become excessively anxious and not be able to think clearly and answer questions. She will have to be very supported, given time to think through her answers and not put under undue pressure. She usually needs her Mother to support her in my sessions but after some years is being able to talk.
Clearly, if the complainant were to “shut down” and not function, then the proper evidence necessary for the court proceedings would not be able to be adduced. That would be contrary to the interests of justice.
Mr Robert Stirling, who is training Tuppence, said in a written report annexed to the Crown’s affidavit, and I find:
An Assistance Dog is a permanent companion to a person with a disability, trained specifically to assist and enable that person to gain greater independence. [The complainant’s] dog is assisting her to counter the effects of, and cope with, anxiety, providing her greater freedom, reduced reliance on caregivers and a tool to overcome the social isolation she has in part as a result of the difficulties she experiences from having an Autism Spectrum Disorder (ASD).
[The complainant’s] Assistance Dog-in-training is already proving to be a highly skilled and specialised dog. We are anticipating that the dog will be ready to pass the Assistant Dog International Public Access Test before the end of the year. This test is required for the dog to be certified for public access rights in accordance with the Disability Discrimination Act 1992 (Cth).
Mr Stirling gave oral evidence, and I find, that he is currently retired from permanent full-time paid employment. He confirmed that he has been supervising the training of Tuppence under the guidance of Steve Austin. Mr Austin is a respected and well-known trainer of assistance dogs both in Australia and internationally. He was, for a time, a director of Assistance Dogs of Australia and has been involved with such training both in Australia and overseas, in Japan, New Caledonia and the United States of America.
Mr Stirling has a long history of engagement in the care and use of dogs. He had his own dogs which have been shown at Dog Shows, has been a registered dog breeder and been a member of a Sporting Terrier Club. He also had a considerable history of training dogs for the Australian Quarantine Inspection Service. He established the detector dog squad and managed the program for eleven years, including selecting suitable dogs, initially training them and the contracting trainers to undertake the work.
Since then, he trained and managed dogs used in the 2000 Olympic Games in Sydney. He has maintained an interest in dogs and dog handling and training.
He said that he met the complainant and her mother as neighbours and, in discussion with the complainant’s mother, agreed to assist with securing and training an assistance dog for the complainant. He contacted Mr Austin who agreed to supervise the arrangements and provide advice. Mr Austin sourced Tuppence, who was never a pet dog. He had been told of the diagnoses made of the complainant’s disability and this informed the selection of the dog. Mr Austin then provided guidance on the training of Tuppence and makes contact with Mr Stirling about once a month.
Mr Stirling described that the training is largely carried out through the complainant gaining confidence in her interaction with Tuppence. Tuppence sleeps on the complainant’s bed and, since she has begun to do so, the complainant has not suffered from nightmares. If the complainant gets stressed, Tuppence senses that and leans against her to provide a tactile experience which appears to be at the heart of the assistance provided. This tactile experience relieves the complainant’s stress.
Mr Stirling’s role is to expand Tuppence’s behavioural capabilities to “teach her some manners” and prepare her for public access rights, which I infer (though, it must be accepted, was not the subject of express evidence) includes standards of hygiene, as well as the appropriate behaviour which Mr Stirling mentioned in his evidence.
Mr Stirling explained that the support that Tuppence provides emotionally to the complainant is not something that can be taught; it comes from the close interaction between Tuppence and the complainant. Tuppence will sense when the complainant is getting stressed and will move in closer, even to lying on the complainant’s feet.
Mr Stirling did not know of any regime for accreditation of assistance dogs in the Territory but he was proposing to use a test regime that was used by Assistance Dogs International.
Assistance Dogs International is an international non-government organisation that has been setting standards for the assistance dog industry since 1987. Assistance Dogs Australia was founded in 1996 as a national charity which trains Labradors and Golden Retrievers to help people with disabilities, providing them with greater freedom and independence. There is also an organisation in Australia known as RSB Autism Assistance Dogs, operated by the Royal Society for the Blind, and which is accredited by Assistance Dogs International for training the highly specialised dogs that need to be matched with a child who has Autism and their family and carers.
Mr Stirling asserted, and I find, that the assistance dog, Tuppence, provides the following for the complainant:
· increases her ability to cope with life, help with sensory overload and provides emotional support;
· provides a sense of familiarity, as a common characteristic of ASD and a large obstacle for [the complainant] is resistance to change;
· is able to reduce anxiety and deplete symptoms of this disorder, especially when in public, touching the dog’s fur and having the dog close are a great sensory input for [the complainant] to keep her settled in situations that would normally be too difficult for her to handle. The dog provides [the complainant] tactile stimulation to disrupt these overloads;
· is used for managing emotion and challenging behaviours through behaviour disruption;
· is used as a deep pressure therapy aid which is sensory integration therapy applying surface pressure to the body. The dog accomplishes this by placing her body weight against [the complainant’s] leg/s or by lying at her feet, providing a significant calming effect;
· sleeps with [the complainant] and regularly wakes her from nightmares.
Thus, Mr Stirling concluded:
The dog provides comfort and a calming influence, and acts as an anchor for [the complainant] even in situations of high anxiety and sensory overload. Through having a loving and highly skilled canine companion, [the complainant’s] life is being enriched by increasing her independence, social interactions, psychological well-being, confidence and self-esteem and by decreasing her anxiety and isolation.
Mr Stirling produced a test sheet setting out what were said to be the “Scoring Factors of the Public Access Certification Test” used by Assistance Dogs International. It was admitted into evidence.
Having considered the factors mentioned in the sheet and Mr Stirling’s history of working with and training dogs, I am satisfied that he has the ability to assess the factors identified. No contrary submission was put.
Mr Stirling then, at my request, indicated, by reference to the sheet, the extent to which Tuppence met the criteria for the various factors. There were a number where Tuppence had not been tested or was not meeting the criteria in full or at all. They were:
· The dog remained under control while another dog walked past.
· The dog maintains a sit – stay while being petted by a stranger.
· The dog responded promptly to the command to down – Tuppence mostly met this criterion but not always.
· The dog remained in control while the child approached (child should not taunt dog or be overly dramatic).
· Experience in restaurant (the dog is unobtrusive and out of the way of patrons and employees as much as possible and the dog maintained proper behaviour, ignoring food and being quiet) – not tested as no experience yet in a restaurant, although Tuppence had visited the Southern Cross Club in Gungahlin and behaved appropriately.
· Another person can take the dog’s lead and the dog’s partner can move away without aggression or undue stress on the part of the dog – not tested “in the field”, but tested satisfactorily at home.
· The dog stopped when the individual came to a halt – Tuppence did that mostly but not always.
· The person was prepared with proper working materials and equipment in case of an access confrontation (laws, etc).
The test required a score of “Always” or “Mostly” and at least 80 per cent yes answers, including some specially marked, which were compulsory behaviours that had to be met. There were 76 per cent “yes” answers but those not answered “yes” did include some compulsory factors, which are included in those mentioned above. There were no answers less than “Always” or “Mostly” but, again, some were not yet able to be answered at all, also included in those mentioned above.
Mr Stirling is also available to sit outside the remote room to provide any support that might be needed in the event that there was a problem.
In cross-examination, Mr Stirling was asked about the timing of accreditation for Tuppence and said that it was proposed for October and most likely to be conducted by Mr Austin. If Tuppence failed, she could be tested again at some later stage. He explained that Tuppence did not wear any special jacket or other equipment.
Mr BL’s affidavit set out some of the family history and then he deposed to not having had any contact with the complainant since October 2012 although, under orders made by the Federal Circuit Court of Australia, he had equal parenting responsibility for the complainant.
He had, however, maintained contact with her school and Dr Pattison, including being provided with school reports, individual learning programs, updates and feedback from the autism unit of her school and other information about her general well-being and progress. The complainant continues to attend High School and is in Year 10.
He referred to the family law proceedings involving himself and his wife, the complainant’s mother, and deposed, and I find, that the complainant had participated in a number of separate interviews with a court appointed psychiatrist and “follow-up therapy” with a well-known Canberra psychologist. She was not accompanied during any of the family law proceedings by an assistance dog. I was not told, however, whether the complainant was required to give evidence in those proceedings.
Mr BL deposes, and I find, that there had been further interviews between the complainant and various other people, including another court appointed expert, another clinical psychologist and with members of what appears to be the Children, Youth and Family Services Program of the ACT Directorate of Community Services, as well as treatment with Dr Pattison and engagement with teachers and staff at her school. Again, Mr BL deposed, she did not have an assistance dog accompanying her.
Indeed, he stated that the first he formally knew of her being accompanied by a dog was when the application was filed in these proceedings.
He had, however, known, since 29 November 2015, that the complainant had acquired Tuppence on 27 November 2015, because he received an email message from his other daughter announcing the arrival of Tuppence. A copy of the email “train” or “thread” was annexed to his affidavit; that does not describe Tuppence as an assistance dog but it makes it clear that there are restrictions on the interaction between her and other people, including family members.
Mr BL further deposed that the complainant does not currently take Tuppence to school, the shops and other public places as she has not yet completed the “Public Access Test”. He also deposed that, to the best of his knowledge, Tuppence does not accompany the complainant to a number of extra-curricular activities. I am not prepared to find that this is the current position since November 2015 though, given the fact that Tuppence is still in training, it may well be so. Mr BL’s evidence on this point is, for example, a little inconsistent with the evidence of Mr Stirling, who had stated that Tuppence had been taken by the complainant at least to the Southern Cross Club in Gungahlin and with his statement that Tuppence “has become a crucial component in [the complainant’s] life”. Without cross-examination on any of these statements, it is difficult for me to know where precisely the truth lies.
Mr BL also annexed a statement provided by a resident of Latham who was at the Skyzone Trampoline Park in Belconnen on 13 July 2016. She saw Mr BL’s other daughter and later saw her with the complainant. The two girls sat at a table with other friends and relatives and with the statement’s author. She said that the complainant “seemed to be having a great time with the other children jumping and laughing”. She later left and the complainant and her companions stayed. She did not see the complainant accompanied by any dog, despite the environment being bright and noisy. The complainant wore no hat or glasses.
Mr BL deposed further that between the diagnoses of the complainant’s disabilities and October 2012, he had never seen the complainant wearing a visor or sunglasses to reduce glare. The complainant did, however, wear sunglasses in the police interview. He deposed, however, that he was aware of many occasions since October 2012 where the complainant has not required a visor, sunglasses to reduce the glare and has not required an assistance animal.
Some of his affidavit read more like submissions than evidence.
Mr BL also gave oral evidence. He described his knowledge of the complainant’s disabilities and how they exhibited themselves, especially in social interaction where she could easily get frustrated and go into what he described, without further elaboration, as “meltdown”. He also noted that she would find it difficult to understand indirect communication or non-verbal emotion in others.
He acknowledged that giving evidence would be a stressful experience and acknowledged that Tuppence would provide help to the complainant in court.
Implementing special arrangements
There is no doubt that the fundamental requirement of the trial process is that the trial of an accused be a fair trial. A conviction reached in breach of a fair trial cannot stand: R v Forbes [2001] 1 AC 473 at 487; R v Macfarlane; Ex parte O’Flanagan and Kelly (1923) 32 CLR 518 at 541-2.
The notion of what is a fair trial is not always easy to articulate. There is also a need to recognise that there are a number of interests involved in the fair trial, not just those of the accused.
As Lord Steyn pointed out in Attorney-General’s Reference (No 3 of 1999) [2001] 2 AC 91 at 118:
It must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.
See also R v H [2004] 2 AC 134 at 146; [12].
There is a changing realisation that special arrangements for witnesses, especially child witnesses, are often necessary to ensure that the trial is fair to the child and to the public, without compromising the fairness to the accused. This was explained well in M Jones and T Crocker, Responding to Sexual Assault: the challenge of change (ACTDPP and AFP, Canberra 2005) at 117 where it was said:
At the best of times, people find attending court and giving evidence daunting. For children, the world of court is particularly alien; for all victims of sexual assault, recounting details of their experience in court can be challenging. Cross-examination provokes particular anxiety. In the report of their 2002 study of child sexual assault prosecutions in three states Eastwood and Patton put it this way:
For the child, the adversarial nature of lengthy cross-examination in a hostile and intimidating courtroom environment in the presence of their abuser, appears impeccably designed to reinforce feelings of powerlessness and blame. Indeed, in terms of child psychology and development, it would be difficult to come up with circumstances more inappropriate for the child who has been sexually abused.
The Heroines of Fortitude report, which examined the transcripts of all recorded sexual assault trials involving adult victims held in New South Wales over a year, found that the court experience is often re-victimising and abusive for women. Added to the stress of giving evidence is the subject matter: the report found that women were asked a large number of questions about their sexual organs and those of the accused. This might well be necessary given the reason for the proceedings, but the intimate nature of the evidence distinguishes the court experience of sexual assault victims from the court experience of other victims of crime.
The Australian states and territories, as well as other countries, have been trying to find ways of making it less stressful and traumatic for victims of sexual offences when giving evidence - without infringing the right of the accused to a fair trial - and in the past two decades a variety of special measures have been introduced.
(footnotes omitted)
There is, in fact, a long history of the implementation of special arrangements to ensure that a witness is not compromised and can give the best evidence he or she can give. Thus, in Smellie (1919) 14 Cr App R 128, the UK Court of Appeal upheld the decision of a trial judge to require an accused to sit on the stairs out of the dock so that the witness, his daughter, could not see him. Lord Coleridge J said at 130 for the Court:
If the judge considers that the presence of the prisoner will intimidate a witness there is nothing to prevent him from securing the ends of justice by removing the former from the presence of the latter.
See also West (1990) 51 A Crim R 317. As to some of the measures available, see R Pattendon, Judicial Discretion and Criminal Litigation (Clarendon Press, Oxford, 1990) 2nd ed at 116-9.
In R v Smith [1994] Crim LR 458, the UK Court of Appeal Criminal Division held that “it is the judge’s task to order a procedure which reduces the strain on child witnesses without prejudicing the interests of the defendant”.
Much of the special arrangements that are now made, especially for children but also complainants in cases where the accused has been charged with sexual or personal violence offences, are now enacted in legislation such as the Evidence (Miscellaneous Provisions) Act. As can be seen, however, this is not exhaustive and the court still has power to protect its processes by ensuring that witnesses are able to give the best evidence they can.
While special arrangements, such as pre-trial recording of evidence, screens, use of closed circuit television and the like are often implemented, there are other measures that are available and, in some cases, authorised or mandated by legislation. Thus, s 41 of the Evidence Act 2011 (ACT) empowers a judge to limit cross-examination which is “unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive” as it was realised that the excesses of the 18th, 19th and first 80 years of the 20th Century which gave legitimacy to the demolition of witnesses (and not just their account) by cross-examination could no longer stand. Similarly, in this jurisdiction, ss 38E and 101 of the Evidence (Miscellaneous Provisions) Act require a support person to be with a witness when he or she gives evidence, if requested. As R v Smith shows, however, such special arrangements are available not only because of legislative intervention; in that case, a social worker was allowed to sit beside the child witness while she gave her evidence.
While not ordinarily one of the special arrangements that have been used by courts, there have been examples of assistance dogs being with persons with a disability when giving evidence in court. See, for example, Forest v Queensland Health (2007) 161 FCR 152 at 181; [113].
There is little to differentiate a support person and an assistance animal so far as the intention to relieve the known, perhaps inevitable, stress for a child when giving evidence, especially one with a disability relevant to the giving of evidence.
Legislative provisions
There are legislative provisions that bear directly on this question as there are, for example, with support persons.
There was much discussion in these proceedings about accreditation. That may be because of a perceived requirement for some kind of official assertion that a dog, said to be an assistance dog, is approved for that purpose.
Some of that comes from the Disability Discrimination Act 1992 (Cth), which prohibits discrimination on the ground of disability. This is not directly applicable here, for there is no area specified in the legislation that is directly relevant to the giving of evidence. It could, perhaps, be argued that the refusal to permit Tuppence to accompany the complainant is a discrimination in relation to access to premises, made unlawful by s 23 of the Act, but this was not explored.
The submissions in respect of the Disability Discrimination Act revolved around its definition of assistance animal. Thus, s 8(1) of the Act provides that, for the purposes of the Act, having, inter alia, an assistance animal is the same as having a disability. Section 9(2) there defines what an assistance animal is as follows:
9 Carer, assistant, assistance animal and disability aid definitions
Meanings of carer or assistant, assistance animal and disability aid
...
(2) For the purposes of this Act, an assistance animal is a dog or other animal:
(a)accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or
(b) accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or
(c) trained:
(i) to assist a person with a disability to alleviate the effect of the disability; and
(ii) to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.
Note: For exemptions from Part 2 for discrimination in relation to assistance animals, see section 54A.
This definition applies to the Disability Discrimination Act; it does not necessarily apply outside that Act and cannot be assumed to be applicable to other circumstances.
There was, in this hearing, much debate about whether there was a scheme of accreditation in this Territory for assistance dogs. I am satisfied that there is not. I am also satisfied that there are no training organisations prescribed by regulations. Thus, even were the definition in the Disability Discrimination Act to apply, the only relevance is in s 9(2)(c).
I have been unable to find any legislation locally which provides for the special registration of assistance animals. The parties accepted that there was none. There are, however, some provisions relating to assistance dogs.
The Domestic Animals Act 2000 (ACT), defines “assistance animal” as meaning “an animal trained to help a person with a disability to alleviate the effect of the disability”. This is similar to but not quite the same as that set out in s 9(2)(c) of the Disability Discrimination Act.
Section 104 of the Domestic Animals Act 2000 (ACT), then provides
104 Rights of persons accompanied by assistance animals
(1) Despite any other territory law (other than the Discrimination Act 1991), a person with a disability accompanied by an assistance animal has the same right of access to, and the same right to the use of, a public place as a person who is not accompanied by an assistance animal.
(2) Without limiting subsection (1), a person with a disability does not commit an offence merely by taking an assistance animal onto or into, or allowing the animal to enter, a public place.
While this legislative regime requires that an assistance animal must be trained to help a person with a disability to alleviate the effect of the disability, it does not require any particular accreditation or standard for such training.
Effect of the legislation
Much debate in these proceedings centred around the question of whether Tuppence was an assistance dog. Mr BL submitted that, as she had not been accredited, she was not. When I pointed out that no accreditation was legislatively required, he then submitted that, as Tuppence had not completed the training she was undergoing, she could not be regarded as an assistance dog.
If there is no accreditation required in this Territory, then the relevance of “completed her training” is rather expressed in a vacuum for it raises the question – completed for what? If the answer is accreditation, then that becomes irrelevant as there is no such requirement, notwithstanding the intention of Mr Stirling and others to seek accreditation.
I accept, however, that the legislation requires that for a dog to be an assistance animal it must have “training to help a person with a disability to alleviate the effect of the disability”. In this case, however, the evidence of Mr Stirling is that Tuppence has achieved that. What Tuppence provides, as set out above (at [39]), is clearly alleviating the effects of the complainant’s disability.
That some might regard Tuppence as not yet ready for complete public access and possibly not fitting within the definition in the Disability Discrimination Act (a matter on which I express no opinion, though Tuppence may well comply), does not seem to me to be relevant to the decision that I have to make. For example, it seems to me to be irrelevant to the question of whether Tuppence might accompany the complainant into the remote room from which she will give her evidence as to whether Tuppence can behave adequately in a restaurant or whether she is distracted by another dog walking past.
It seems to me that, on the evidence I have heard, Tuppence has been trained in the sense used in the Domestic Animals Act, despite not yet being accredited by a respectable and appropriate organisation, such as Assistance Dogs International or Assistance Dogs Australia or the Royal Society for the Blind Autism Assistance Dog Program.
I am also satisfied that the training provided by Mr Stirling meets the requirements for appropriate training. He is obviously a highly experienced dog trainer and very knowledgeable about dogs and this was not challenged. I accept that his expertise is in a somewhat different area of dog training but I do not accept that this background is entirely foreign, unable to be transferred or irrelevant to training an assistance dog. I am also satisfied that he is supervised by a highly qualified assistance dog training expert.
In this regard, the decision of Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207 at 211-2; [5](a), 241; [125](a), 241-2; [127](b) and 244; [133](a) is very helpful, where training was provided by a group not apparently associated with any of the recognised assistance dogs training organisations, such as those mentioned above (at [38]), and where there was no apparent formal accreditation but rather an assertion by the trainer that certain relevant behavioural standards had been met by the dog in question.
The court there held that the dog was an assistance dog with the meaning of s 9(2) of the Disability Discrimination Act. That test may be considered somewhat more stringent than the test in the Domestic Animals Act and so I have no hesitation in finding, were it necessary, that Tuppence is an assistance dog within the meaning of that Act. See also Forest v Queensland Health at 175; [92], when the Court accepted similar training as sufficient, a matter not challenged on the appeal which set aside the trial judge’s decision on other grounds. The trial judge’s decision is affirmed by the Full Court in Mulligan v Virgin Australia Airlines Pty Ltd.
Should Tuppence be permitted in the remote room with the complainant?
Subject to the question of prejudice, it seems to me that fairness to the complainant and the requirements of a fair trial justify leave being granted to have Tuppence admitted with the complainant into the remote room from where the complainant will give her evidence.
In the first place, I am satisfied that Tuppence 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 am also satisfied that Tuppence is trained to a sufficient standard to permit her to be in the room. I make no finding as to whether, had she not been as well trained to date as Mr Stirling’s unchallenged evidence stated, Tuppence could nevertheless be admitted, though that may be so.
It was submitted on behalf of Mr BL that, because the complainant had not been using Tuppence in the interviews with psychologists and a psychiatrist for the proceedings in the Federal Circuit Court of Australia, with police and with her treating psychiatrist, there was no need or she should not be permitted to have Tuppence with her in the remote room.
There are, in my view, two answers to this. In the first place, none of those circumstances are comparable to giving evidence where the complainant is expected to be giving seriously damaging evidence against her father, involving intimate matters of sexuality to a room (if remote) full of strangers, in a formal setting and where she can expect to have her evidence challenged and possibly suggested to be untrue or even fabricated. This is simply not a comparable situation to that she has previously experienced.
Secondly, since acquiring Tuppence, the complainant has clearly, on the evidence, gained benefit from the assistance she provides. Whether or not she could previously function adequately without Tuppence, there is an inevitable degree of dependence that will have built up between her and Tuppence since November 2015. To withdraw that seems to me to be cruel and inconsistent with the requirement expressed in R v Smith to reduce the strain on the complainant from the act of giving evidence. That the complainant is likely to function better with Tuppence accompanying her is not unfairly prejudicial to Mr BL.
I accept that Dr Pattison did not say that Tuppence was a necessary amelioration to the stressful situation that the complainant will face in giving evidence. She did not say, however, that the complainant did not need Tuppence nor that she should not have Tuppence. While the omission is unhelpful to the success of the application, I do not consider it to overshadow the clear and compelling evidence of Mr Stirling.
Prejudice
Notwithstanding my view that Tuppence should be permitted to be with the complainant in the remote room when she gives her evidence, I must weigh the question of whether the prejudice to Mr BL is such that it will derogate from the fairness of his trial.
There were two matters of prejudice asserted on behalf of Mr BL. The first was that the presence of Tuppence will evoke sympathy in the minds of the jury. The second is that the presence of Tuppence may distract the jury.
As to the first, Mr BL asserted that Tuppence 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
I am not satisfied that the presence of Tuppence, 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 Tuppence and not take into account any consideration of sympathy or prejudice that might otherwise be engendered.
As to the second matter, Mr BL deposed:
I am innocent of all charges and do not want a jury missing any detail of the evidence, or not being able to gauge Courtney’s mannerisms appropriately or her demeanour if they are distracted by the dog.
He also notes that Tuppence is now sixteen months old and “likely to be of considerable size”.
I am not minded to permit Tuppence to sit on the complainant’s lap while giving evidence, as is requested. Indeed, Mr Stirling suggested that she would sit at or on the complainant’s feet; that would be under the table at which the complainant would be sitting in the remote room. He also said that they had discussed the complainant putting her foot on the leash to Tuppence so that she would not be able to move much. He did not think that Tuppence should be on the complainant’s lap.
Thus, it seems to me that the jury are unlikely to see much, if anything, of Tuppence. That is not, however, the basis on which I would permit her to be present, but it is relevant.
If, however, the dog does interfere with the course of evidence, then the proceedings can be stopped. This is a pre-trial hearing. The evidence is not being given live to the jury, but is being recorded. In the event that there is an inappropriate distraction, the recording can later be edited before it is played to the jury. If the distraction is such that the fairness of the trial is compromised, then even evidence given during the distracting occurrence may need to be excised.
I am not satisfied that there is a real risk of prejudice by the possibility of distraction that would divert the jury from its task.
Accordingly, I am not satisfied that there is any unfair prejudice to Mr BL said as to justify declining to permit Tuppence to accompany the complainant when she gives evidence. This is, of course, subject to any directions that the presiding judge may give as occasion arises during the actual giving of evidence by the complainant.
Visor or cap
The application also seeks that the complainant be permitted to wear a visor or cap when giving evidence. It was asserted that the complainant “is particularly sensitive to lighting in offices and will need to wear a visor or cap to reduce the glare of the lights in the remote room”. I note that the complainant wore sunglasses during the police interview.
Again, Mr BL opposed the use of a cap or visor. He relied on the fact that the complainant had, so far as he was aware, not required such measures previously. He relied also on the statement of the friend who had seen the complainant at Skyzone Trampoline Park. He also noted that Dr Pattison had referred to external stimuli but only made specific reference to noise and no reference to light.
As with the use of an assistance dog, I am not convinced that lack of prior use is necessarily a good indicator that in this specific, inevitably stressful, situation, the past is a good guide. Indeed, the wearing of sunglasses in the police interview is some counter example to that argument.
The friend who saw the complainant at the Skyzone Trampoline Park did say that in what she described the environment as “well lit, extremely both noisy and busy”, the complainant was not wearing a hat or glasses. She was, however, laughing.
Again, that is a very different environment to the environment under which the complainant would be giving evidence. It is unlikely that the complainant would be happy, having fun or laughing.
The circumstances of “overload” to which Dr Pattison refers are where the complainant is anxious, a quite different situation to a fun park. It is when she is anxious that she “shuts down”, “cannot think clearly”, is “sensitive to external stimulus” and “is easily overloaded”. That Dr Pattison did not mention lights is not decisive, in my view, as her reference was to “external stimulus” and noise was merely an example. I consider that light is also an obvious example of an external stimulus.
This is more complicated because it is important that, so far as possible, the jury should see the complainant’s face, including her eyes. See R v D(R) (Unreported, Blackfriars Crown Court) 16 September 2013). There is not sufficient evidence to justify the use of sunglasses, but that is not sought.
I do not consider that the use of a cap or visor would necessarily interfere with the jury’s sight of the complainant’s face. I have, however, not seen precisely what is proposed. In my view, if the visor or cap does not, to any significant degree, obstruct a clear sight of the complainant’s face, it is permissible. That can only be assessed when the court can see the complainant and any headwear.
The risk is that, if she is permitted to show the headwear and then a ruling is made that she cannot continue to wear the cap, this may increase her anxiety more than were she given to understand from the outset that she may not wear such a head covering.
That is a matter that I cannot judge and only the prosecution, the complainant and her family and advisers can judge.
In the result, I consider that, so long as the complainant’s face is not obscured by wearing a visor or cap, including the way she faces the camera – directly and not looking down so that the brim obscures her face – then she should be permitted to wear a visor or cap. A decision may need to be made, however, as to whether the risk that she may be required to remove it is too great to proceed in that way.
I would give any leave necessary for the prosecution to have access to the remote room and a courtroom, subject, of course, to availability, to test whether that is a real risk and to help determine how to proceed. The prosecution may wish to have Mr BL’s legal advisors participate in that process.
That may also allow the prosecution to investigate whether there may be other methods, such as the turning off (or removing the bulbs) of some lights so as to reduce the glare – but only if that does not impede the clear visibility of the complainant and a usable recording of her evidence.
Subject, then, to the presiding judge, when the complainant is actually giving evidence, directing the removal of the cap or visor if it does obscure her face to an unreasonable degree, the complainant may wear a cap or visor when giving evidence.
Fiddle Toys
It was also asserted that the complainant “uses fiddle toys to reduce her anxiety”.
It is not uncommon for witnesses to fiddle with pens, glasses or shuffle papers when in the witness box. Unless the court considers it distracting to an unreasonable degree, it has not been prevented, in my experience. Indeed, I have even seen witnesses play with so-called “worry beads” in the witness box.
The problem with this part of the application is that there was absolutely no evidence of the size or nature of such “fiddle toys”.
In those circumstances, I cannot decide on this matter. It should be left to the presiding judge.
Again, the prosecution should consider whether the danger of raising the complainant’s expectations, only for the judge to rule that the toys cannot be used, is greater than preparing her not to use them.
Disposition
Accordingly, I have made orders permitting the editing of the police interview. I will permit Tuppence to be present while the complainant is giving evidence but not to be on her lap.
Subject to a contrary ruling by the judge presiding at the pre-trial hearing, such as where the complainant’s face is obscured to an unacceptable degree, the complainant may wear a cap or visor when giving evidence. I will refer to the presiding judge the question of whether the complainant is permitted to take “fiddle toys” into the remote room and use them while giving evidence.
| I certify that the preceding one hundred and thirty-six [136] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date:8 August 2016 |
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