R v BNS
[2016] ACTSC 51
•24 March 2016
HUMAN RIGHTS ACT
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BNS |
Citation: | [2016] ACTSC 51 |
Hearing Date: | 23 March 2016 |
DecisionDate: | 24 March 2016 |
Before: | Refshauge J |
Decision: | SN give evidence by audio visual link from a room in the ACT which is outside the court room in which the trial is being heard. |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – trial EVIDENCE – Evidence of complaint – relationship evidence – history of family violence by accused against witness – accused has conviction for intimidating witness – evidence via audio visual link from a remote location – pre conditions in s 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – convenience of giving evidence via audio visual link – fairness to accused – no objection by defendant |
Legislation Cited: | Crimes Act 1900 (ACT), s 62(6) Evidence Act 2011 (ACT), s 66 Court Procedures Rules 2006 (ACT), r 6703 |
Cases Cited: | Australian Competition and Consumer Commission v StoresOnline International Inc [2009] FCA 717 Brodie v Streeter (2003) 180 FLR 176 |
Parties: | The Queen (Crown) BNS (Defendant) |
Representation: | Counsel Ms J Campbell (Crown) Mr J Sabharwal (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Number: | SCC 53 of 2015 |
REFSHAUGE J:
The accused, BNS, has pleaded not guilty of two counts of incest and five counts of committing an act of indecency on TN. At the time, BNS was in a relationship with SN, the mother of TN. TN was, within the meaning of s 62(6) of the Crimes Act 1900 (ACT), said to be the step child of BNS.
SN has been called to give evidence at the trial and is expected to give evidence of complaint made by TN as to the acts charged, admissible under s 66 of the Evidence Act 2011 (ACT). She is also expected to give what is known as relationship evidence (see HML v The Queen (2008) 235 CLR 334) setting out her and her children’s relationship with BNS as the setting or context for the alleged offending.
Application has been made for SN to give her evidence by audio visual link from a location outside the court room in which the trial is being heard.
SN is expected to say that BNS was physically abusive to her during the relationship. She says that she has ongoing anxiety and depression which will inhibit her ability to give her best evidence if she is required to give her evidence in the court room. She also relies on the history of family violence she says she suffered from BNS which has caused her to feel intimidated in front of him.
Finally, SN is aware that BNS has a conviction for intimidating a witness and this has increased her apprehension of giving evidence in his physical presence. Indeed, she previously felt too intimidated to make a statement to police.
It is now mandated under Pt 4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) that certain witnesses have the right or, in certain circumstances, must give evidence by audio visual link from a remote location. Special rooms have been established in the court precinct for this purpose, linked by video transmission facilities to the courts in order to effect the relevant witnesses giving evidence in this way. As SN is neither a child nor a complainant or similar fact witness, those provisions are not available to permit her to give evidence in this way.
When the application was first made, I was concerned about the power I had to make such a provision. The common law appears to be as set out in R v Hampson [2014] 1 Cr App R 4 28 at 30-31; [13]-[14]. Relying on R v Diane [2010] 2 Cr App R 1 at 5; [13], where it was held that a court does not have power to admit evidence given by video link other than in accordance with statutory provisions, the court in R v Hampson held that the authority for giving evidence by video link is only available where statutory provisions provide for it.
There is, however, provision for giving evidence in this way in s 32 of the Evidence (Miscellaneous Provisions) Act which provides:
32Territory courts may take evidence and submissions from place other than participating State
(1) Subject to any Act or rules of court, a territory court may, on the application of a party to a proceeding before it or on its own initiative, direct that a person, whether or not a party to the proceeding, appear before, or give evidence or make a submission to, the court by audiovisual link or audio link from—
(a) a place in the ACT that is outside the courtroom or other place where the court is sitting; or
(b) a place outside the ACT but within Australia (other than a participating State).
Note The Evidence and Procedure (New Zealand) Act 1994 (Cth), pt 4 (Use of video links or telephones in Australian proceedings) and the Court Procedures Rules 2006, div 6.10.7 (Taking evidence from New Zealand by video link or telephone) apply to the taking of evidence and submissions by audiovisual links or audio links from New Zealand.
(2) The court may make the direction only if satisfied that—
(a) the necessary facilities are available or can reasonably be made available; and
(b) the evidence or submission can more conveniently be given or made from the place; and
(c) the making of the direction is not unfair to any party opposing the making of the direction.
(3) The court may at any time amend or revoke a direction made under this division, either on the application of a party to the proceeding or its own initiative.
(4) While a person is at a place giving evidence or making a submission, the place is taken to be part of the court.
The pre-conditions for such a procedure are set out in s 32(2) of the Evidence (Miscellaneous Provisions) Act. I will address each of them briefly.
(a) Availability of the Facilities
As noted above (at [6]), facilities have been installed and are regularly used for children and certain other specified witnesses to give their evidence in this way. There is no doubt that the necessary facilities are available.
(b) Convenience of giving evidence in this way
This second condition has been considered by Higgins CJ in Brodie v Streeter (2003) 180 FLR 176, where his Honour had to consider the meaning of the words “more conveniently” which appear in the section, then numbered s 30 of the Evidence (Miscellaneous Provisions) Act. His Honour was considering an appeal from a hearing before a Magistrate who had given leave for a witness to give evidence by video link from a remote location.
The Respondent submitted that the witness’s evidence could not be given “more conveniently” from a remote location by video link. His Honour rejected the argument, saying at 179: [14]-[17]:
14.Her Worship adopted a wide interpretation of ‘more convenient’. Clearly, the witness in this case was not more conveniently located in a remote witness room as opposed to being located in the courtroom. She could equally conveniently access either.
15. The dictionary definition, adopted by her Worship, is in terms of suitability - being ‘not troublesome’ to a person. It seems to me that ‘more convenient’ is an expression used in a wide sense to include the convenience of the court, the parties and the witness in question.
16. In the present case, it was, in my view, open to her Worship, on the evidence, to find that the witness' stated aversion to the appellant, whether reasonably based or not, made it ‘more convenient’ for her to give the evidence remotely.
17. It was also more convenient for the court to have the evidence given free from the stated inhibitions troubling the witness. Indeed, to an extent, it would favour the appellant that, if the witness' evidence was nevertheless unsatisfactory, that could not be attributed to the inhibiting presence of the appellant.
The present case seems to be on all fours with the situation of the witness in Brodie v Streeter. Accordingly, having regard to the expressed concerns of SN and the justifiable reason for them, I am satisfied that it is more convenient for SN to give evidence from a remote location by video link.
(c) Unfair to the Accused
BNS does not object to this procedure. It is to be accepted that, where there is no objection to the procedure, it cannot be unfair for the accused. Indeed, the question of unfairness appears in s 32(2)(c) of the Evidence (Miscellaneous Provisions) Act only to arise if the other party opposes the application.
I note, too, that s 22 of the Human Rights Act 2004 (ACT) does not, in terms, require that an accused have the right to confront his or her accuser, but establishes the right to have prosecution witnesses examined.
Nevertheless, the general rule is that the Crown case should be presented by the prosecution of witnesses giving their testimony in the presence of the accused. That is the position taken in R v Diane. See also R v Ngo (2003) 57 NSWLR 55.
Nevertheless, courts have accepted that measures may be accepted which qualify that position to protect vulnerable witnesses, as in the case of informers: R v Savvas (1989) 43 A Crim R 331; R v Mr C (1993) 67 A Crim R 562.
Despite some differences between evidence given by video link and that given in person, as described in Holzman v New Horizons Learning Centre (Canberra) Pty Ltd (2004) 180 FLR 246 at 247-8; [9], the results of substantial experience of giving evidence by video link generally supports that it need not be unfair.
In R v TK (No 2) [2015] ACTSC 87 at [54], I said:
Nevertheless, complainants and vulnerable witnesses have now been giving evidence in this way for two decades in numerous English speaking countries. A research study on the effects of a part of such evidence was recently published. See Kimberley S Burrows and Martine Powell, ‘Prosecutor’s Perceptions of the Use of Recorded Child Witness Interviews About Abuse As Evidence in Chief’ (2014) 47 ANZ Journal of Criminology 374. They noted:
While prosecutors were concerned that using video recorded evidence reduced juror’s engagement with the witness, case outcome studies have suggested that juror decision making is unaffected by the mode of evidence presentation.
Indeed, experience has been such that in R v Wilkie (2005) 64 NSWLR 125 at 127; [4], the Court noted that:
[t]he applicants expressly abjured any submission that the use of video link evidence infringes an essential element of a criminal trial.
A concession in other proceedings is of limited precedent value. Further, that does not, of course, mean that the course should regularly or always be followed. Each case must be decided on its merits and in accordance with the provisions of the statute.
A helpful list of considerations for a court determining the matter is set out in R v Ngo at [87]. These do not replace the statutory provisions, which remain the primary yardstick by which the application is to be tested, but they provide a helpful list of considerations when the court is considering the undoubted discretion that it has.
Other considerations
Finally, the authority to give a direction under s 32 of the Evidence (Miscellaneous Provisions) Act is subject to any Act or rules of court.
So far as I am aware, there is not another Act that impinges on the direction. I have addressed the Human Rights Act above.
Rule 6703 of the Court Procedures Rules 2006 (ACT) makes the following provision:
(1)The court may receive evidence or submissions by telephone, video link or another form of communication in a proceeding.
(2)The court may, by order, impose conditions for subrule (1).
The provision applies to criminal proceedings: r 6000.
The width of the rule has been criticised by Penfold J in R v TI (No 2) (2015) 11 ACTLR 58, but that was in a different context, namely the taking of evidence by video link from an overseas country. It does not seem to me to affect its application here.
In any event, reliance is not placed on the rule as providing the basis for the application and I do not consider that it derogates from the express statutory provision.
Such an application as is here made will not necessarily be granted. The court has a discretion. The courts still value the opportunity to see a witness physically present. Applications have been refused in a number of cases, including R v TI (No 2); Dorajay Pty Ltd v Aristocrat Leisure Ltd [2007] FCA 1502; Australian Competition and Consumer Commission v StoresOnline International Inc [2009] FCA 717; Cessnock City Council v Bimbadgen Estate Pty Ltd [2011] NSWLEC 136; Stuke v ROST Capital Group Pty Ltd (2012) 207 FCR 86 and Picos v Healthengine Pty Ltd [2014] FCCA 640.
Such cases provide helpful examples of the considerations relevant to the exercise of the discretion in any case. While they provide some guidance as to what a judicial exercise of the discretion may have to take into account, each case must be decided on its merits and the discretion exercised judicially and not arbitrarily.
Conclusion
In this case, I am satisfied that the pre-conditions set out in s 32 of the Evidence (Miscellaneous Provisions) Act have been met and that no discretionary matters require the application to be refused.
Accordingly, I will give the relevant direction.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 11 April 2016 |
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