R v BL - [2016] ACTSC 209

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 Evidence Act 2011 (ACT), ss 41, 55 Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 38E, 38E(1), 40F, 40M, 40R, 40S, 43(4), 44, 55, 101, Div 4.2.2A, 4.2.2B 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 Forest v Queensland Health (2007) 161 FCR 152 Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207 R v D(R) (Unreported, Blackfriars Crown Court) 16 September 2013) R v Forbes [2001] 1 AC 473 R v Gorman [2009] ACTSC 7 R v H [2004] 2 AC 134 R v Macfarlane; Ex parte O’Flanagan and Kelly (1923) 32 CLR 518 R v Smith [1994] Crim LR 458 Scheele v Watson [2012] ACTSC 196 Smellie (1919) 14 Cr App R 128 West (1990) 51 A…

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.

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Details

AGLC: R v BL [2016] ACTSC 209
Case: [2016] ACTSC 209
Decision Date: 2 August 2016

CaseChat Overview and Summary

The case of R v BL involved the appellant, represented by counsel, challenging the trial judge's decisions regarding the admissibility and presentation of evidence in a criminal trial. The respondent, the Crown, was represented by a prosecutor. The dispute centred on the handling of a child witness's evidence, including the use of an assistance dog and the editing of a recorded police interview. The matter was heard in the High Court of Australia.

The central legal issues before the court were whether the trial judge had erred in permitting the child witness to be accompanied by her assistance dog during the trial, whether the judge had erred in allowing the witness to wear a cap or visor, and whether the judge had erred in authorising the editing of the child witness's recorded police interview. The court also had to consider whether these decisions affected the fairness of the trial or the witness's capacity to testify effectively.

The High Court examined the trial judge's decisions in the context of the witness protection and evidence legislation applicable at the time. The court found that the judge had not erred in permitting the assistance dog to accompany the witness, as this was necessary to reduce the witness's anxiety and sensory overload. The court also held that the judge had not erred in allowing the witness to wear a cap or visor, provided it did not obstruct the jury's view of her face. Regarding the editing of the recorded interview, the court concluded that the judge had the discretion to allow editing to remove irrelevant or prejudicial material, and had exercised this discretion appropriately.

The court made orders permitting the child witness to be accompanied by her assistance dog and to wear a cap or visor during her testimony. The court also authorised the editing of the recorded interview as per the specified provisions. The question of whether the witness could use "fiddle toys" during her evidence was deferred to the judge presiding at the pre-trial hearing.

Orders

Orders of the court

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.

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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