R v C, S - [2011] SADC 194

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v C, S
[2011] SADC 194
Reasons for Ruling of His Honour Judge Tilmouth
21 December 2011
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - EVIDENCE BY CLOSED-CIRCUIT TELEVISION
Held: It is appropriate to make an order for the evidence of the complainant to be transmitted to the court by means of closed circuit television.
Evidence Act 1929 (SA) s 4, s 13, s 13A(4), s 13(7); McKinney v The Queen (1991) 171 CLR 468; R v McHardie and Danielson [1983] 2 NSWLR 733; R v Ngo (2001) 124 A Crim R 151; R v Ngo (2003) 57 NSWLR 55; R v Amjad [2010] SASCFC 68, referred to.
Question of Law Reserved (No 2 of 1997) (1998) 98 A Crim R 544; R v WS (2000) 78 SASR 33, applied.

R v C, S
[2011] SADC 194
The issues

There is before the court an application by the Director of Public Prosecutions pursuant to s 13 of the Evidence Act 1929 (SA) (the ‘Evidence Act’), for the complainant in this matter to be permitted to ‘give evidence from Western Australia and for her evidence to be transmitted to the court room by means of closed circuit television’.[1]
[1] Filed 22 November 2011
The application contains subsidiary requests for orders that the complainant be accompanied by a relative, friend or social worker and that the court be closed during the course of her evidence. The latter are quintessentially for the trial judge to determine, so there will be no ruling on those two issues for the time being. The application is supported by a 90 page statement and associated interviews and specifically by a further statement of 3 November 2011 outlining the reasons for seeking such orders.
Background
It is neither appropriate nor necessary at this preliminary stage to go into fine details. However the key facts of the matter are that the complainant and the accused commenced a relationship in 1993, were married in 2002 and there are two children of the union. The couple were divorced in May 2011. There appear to be extant domestic violence orders preventing the accused from contacting the complainant operative in South Australia, although the situation with respect to his contact with the children is uncertain on the material that has been presented to the court. Ms McMahon his counsel advises that he has not seen the children for a number of years, but why that is so is not immediately apparent.
The allegations behind the charges, 11 of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (the ‘CLCA’), three of aggravated assault (s 20(3) of the CLCA), one of aggravated compelled sexual manipulation (s 48 of the CLCA) and one of aggravated threatening life (s 19(1) of the CLCA), span nearly the entire relationship from early 1994 through to late 2009. The crux of the prosecution’s case is that the relationship was characterised by sexual and physical abuse and threats upon the complainant’s life. There are occasions identified in her statements suggesting that she was at times shadowed by the accused and one or more of his associates.
The complainant expresses her fear of the accused as well as his associates. She has indicated through Ms Kinuthia counsel for the prosecution that if an order as sought was not made she would not be willing to appear in court in the presence of the accused owing to her fear of him. That particular issue is postponed for consideration later.
For its part the defence strongly resists the application. The accused has proffered a detailed proposal designed to avoid contact between him and the complainant during the course of the trial in and around the courtroom environs. The defence further contends that the prosecution case will inevitably depend upon the evidence of the complainant herself and therefore her demeanour will be critical to the jury’s deliberations. The concern from the defence point of view is that evidence transmitted by closed circuit television will lose much of the telling impact of direct observation, rendering the jury’s task more difficult, and to the prejudice of the accused thereby denying him a fair trial of the charges.
The stance taken by the defence is to an extent reflected in s 13A of the Evidence Act which provides in part:
13A—Special arrangements for protecting vulnerable witnesses when giving evidence in criminal proceedings
…
(4)     An order must not be made under this section if the effect of the order would be—
(a)     to relieve a vulnerable witness from the obligation to give sworn                 evidence; or
(b)     to relieve a vulnerable witness from the obligation to submit to   cross‑examination; or
(c)     to prevent the judge, jury or defendant from observing the vulnerable                   witness's demeanour in giving evidence (but the observation may be   direct or by live transmission of the witness's voice and image or by   replay of a recording of the witness's voice and image); or
(d)     to prevent the defendant from instructing counsel while the   vulnerable witness is giving evidence.
Statutory Context
Section 13(2)(a) of the Evidence Act enables a court in any proceedings to make orders that ‘evidence be given outside the trial court and transmitted to the trial court by means of closed circuit television’. The effect of the section first introduced into the Evidence Act in 1993, was explained by Cox J in R v Griffis:[2]
The policy behind s 13 is obvious. The special needs of witnesses require more consideration by the courts than they may perhaps have had in the past. A problem, however, particularly with the complainant in a sexual case, is that there is no way of distinguishing in advance the honest witness from the dishonest. Furthermore, the taking of special measures may be thought to imply some endorsement by the court of the witness's evidence.
[2] (1996) 67 SASR 170 at 177
The triggers for making such orders are spelled out in s 13(1):
13—Special arrangements for protecting witnesses from embarrassment, distress etc when giving evidence
(1)     Subject to this section, if—
(a)     it is desirable to make special arrangements for taking evidence                  from a witness in a trial in order to protect the witness from   embarrassment or distress, to protect the witness from being   intimidated by the atmosphere of the courtroom or for any other                  proper reason; and
(b)     the facilities necessary for the special arrangements are readily                   available to the court and it is otherwise practicable to make the   special arrangements; and
(c)     the special arrangements can be made without prejudice to any                   party to the proceedings,
the court should, on its own initiative, order that special arrangements be made       for taking the evidence of the witness.
It can be seen that as each of the three specified considerations are expressed in the conjunctive, they are cumulative requirements, so that all three must be satisfied before an order of the kind sought can be made.
There is an additional power to make identical orders contained in s 13A(2)(a) of the Evidence Act limited to criminal proceedings, however the pre-conditions for orders thereunder are different in one important respect.[3] Three successive requirements remain before the power to make such orders is enlivened, two of them identical, namely ss 13(1)(b) and (c), and 13A(1)(b) and (c) respectively. The material difference is that in the latter provision the embarrassment, distress or protection from intimidation criteria spelled out in s 13(1)(a), becomes simply ‘if a vulnerable witness is to give evidence in criminal proceedings’ in s 13A(1)(a).
[3] Introduced by s 12 of the Statutes Amendment (Evidence and Procedures) Act (No 7 of 2008)
Section 4 of the Evidence Act defines a ‘vulnerable witness’ so far as relevant to this application, as:
(c)     a witness who is the alleged victim of an offence to which the proceedings relate-
(i)    where the offence is a serious offence against the person; or
(ii)    in any other case – where, because of the circumstances of the witness or the               circumstances of the case, the witness would, in the opinion of the court, be                specially disadvantaged if not treated as a vulnerable witness; or
(d)     a witness who –
(i)    has been subjected to threats of violence or retribution in connection with the         proceedings; or
(ii)    has reasonable grounds to fear violence or retribution in connection with the          proceedings;
In this instance as the several criteria of vulnerability are expressed disjunctively, it is only necessary to satisfy any one of them.
As ‘a serious offence against the person’ is defined in s 4 to mean ‘a sexual offence’, an expression further defined to include ‘rape’ and ‘compelled sexual manipulation’, by definition then, s 13A(1)(a) is satisfied. That conclusion returns the inquiry to the dual requirements of ss 13A(1)(b) and (c) and if necessary, ss 13(1)(b) and (c). However, before embarking upon that inquiry, it is desirable to consider whether s 13(1)(a) is applicable to the case.
Protection from embarrassment distress or intimidation
In Question of Law Reserved (No 2 of 1997),[4] the Court of Criminal Appeal ruled that a trial court in hearing applications like the present, should act upon ‘a plausible and reasonable request’, because the section is to be ‘applied expeditiously’ and informally without protracting pre-trial procedures. The Court added:[5]
when common-sense suggests to the court that the application is plausibly made, while the court must hear any opposition, the order will usually be made without any further inquiry, unless the reasons for any opposition to the order cause the court to have some doubts.
[4] (1998) 98 A Crim R 544
[5] Above at 548-549
The extensive and quite detailed material before the court certainly renders the request both plausible and reasonable. As pointed out to counsel during the course of submissions it is not without its corroborative features. On the face of that material considered in the way required by Question of Law Reserved (No 2 of 1997) it is undoubtedly desirable to make special arrangements in order to protect the witness from embarrassment, distress or intimidation, so that if it comes to it s 13(1)(a) of the Evidence Act would be satisfied in any event.
Since I am quite satisfied that the complainant requires protection from embarrassment and distress, and if not from intimidation, and since she is in any event a vulnerable witness as so defined, the written request by the defence to be afforded ‘the opportunity to cross-examine [the complainant] in respect of the asserted fears’ would plainly infringe the nature and content of the inquiry as circumscribed by Question of Law Reserved (No 2 of 1997).[6]
[6] Quoted above, compare R v Zoneff (No 2) [2000] SASC 70
In my considered opinion this is precisely the type of witness that Parliament intended the remedial procedures to apply to and protect. The special arrangements proffered by defence counsel do not go far enough to alleviate the situation and in any case they do nothing to cater for the fear she expresses from sources other than the accused.
Practical and readily available facilities
It was put by Mr Moffa on behalf of the defence that there was a body of material to put to the complainant, such as affidavits filed in Family Court proceedings, and other physical exhibits such as photographs. The prosecution has undertaken that any such material as is required by the defence will be available at the transmitting end and in the courtroom for this purpose. However, defence counsel suggests there may be other material, and I gather potentially in other formats, that it may wish to show her and which it does not wish to disclose in advance, in order to retain the element of surprise. If that be the case, there is no reason why the accused’s solicitor cannot produce such material in sealed packets to the court and at the transmission end, marked ‘only to be opened by order of the trial judge’. The prosecution has also made arrangements for the CCTV link to be available during standard court times from 10.00 am Adelaide time, so the potential problems created by the time-zone differences is entirely removed. Given these arrangements the court is now satisfied the proposed facilities for taking the complainant’s evidence are readily available and practical in the circumstances.
Prejudice to the accused: (ss 13(1)(c), 13A(1)(c))
Defence counsel strongly maintained that anything short of the witness appearing in court in the presence of the jury, would undeniably prejudice the accused and thereby render his trial unfair. It can be readily acknowledged that it is a fundamental common law right of an accused to have the prosecution case conducted in his presence: McKinney v The Queen,[7] R v McHardie and Danielson.[8] As stated by Lord Mustill in R v Preston,[9] it is of the essence of an adversarial process that the accused ‘… should hear what his opponent has to say and how he says it, so that he can properly frame his response’. Therefore as Dunford J observed in R v Ngo:[10] ‘the practice of requiring witnesses … to be confronted in the presence of the jury, ought not to be waivered lightly’.
[7] (1991) 171 CLR 468 at 488
[8] [1983] 2 NSWLR 733 at 739
[9] [1994] 2 AC 130 at 153
[10] (2001) 124 A Crim R 151 at [10]
However, it is clear that any prejudice to the accused must be a consequence of something more than an order for taking evidence remotely. So much is inherent in the policy lying behind the enactment of the legislation, seen particularly in ss 13(5) and 13A(4). Duggan J observed in R v WS:[11]
I accept that the removal of the opportunity for the jury to observe the complainant in the courtroom is a relevant consideration, but the reference to closed-circuit television in the legislation presupposes that some cases will justify the forfeiture of this suggested advantage. In any event, the advantage, if any, is one of degree; the demeanour of the witness may nevertheless be observed through the medium of closed-circuit television.
In the same case Bleby J pointed out the prejudice referred to in the section must go beyond the prejudice (if any) inherent in the use of the closed-circuit television option in the first place.[12] In the circumstances it is not possible to identify any prejudice to the accused other than that anticipated by the legislation in the first place.
[11] (2000) 78 SASR 33 at [37]
[12] Above at [47]
Prejudice to the complainant (s 13(1)(c), s 13A(1)(c)?
What then of the prosecution submission that the complainant was not prepared to give evidence if she was required to do so in the presence of the accused? This was the situation in R v WS.[13] However the court did not discuss the issue because the decision turned on the failure, as the Court of Criminal Appeal saw it, of the trial judge to protect the witness from embarrassment or distress within the meaning of s 13(1) of the Evidence Act.
[13] Above at [3]
The question also arose in R v Ngo,[14] where witnesses expressed fear for themselves and their families. In making an order permitting them to give evidence from a remote location by video-link, Dunford J observed:
[15] There may be some justification for the fears expressed by the witnesses, although there is no evidence that any of the occurrences giving rise to their fears are in any way referable to any of the accused. But irrespective of whether there is any cause or justification for their fears, I am satisfied that their fears are genuinely held and that they probably would not give the evidence if they were required to do so face to face in the courtroom in the presence of the accused. I am also satisfied that even if they did give the evidence, because of their fears, rightly or wrongly but genuinely held, they would not justice do to themselves as witnesses and it is therefore in the interest of the administration of justice to make the order.
This ruling was upheld in R v Ngo,[15] the court merely observing:
[126] In our opinion, it was legitimate for his Honour to conclude that he was satisfied that the making of the direction was in the interests of the administration of justice. His Honour carried out a discretionary balancing of the relevant considerations and his decision involves no appellable error. The unfairness to the appellant was clearly balanced with the fears of the witnesses and the probability that they would not give evidence if the direction was not made.
In this instance the stance taken by the complainant with regard to giving evidence in the absence of the accused is relevant only to the extent that it carries the capacity to reveal the depth of any potential embarrassment or distress.
[14] (2001) 124 A Crim R 151
[15] (2003) 57 NSWLR 55; [2003] NSWCCA 82
What order is appropriate?
I do not think it appropriate to direct the evidence be transmitted into the courtroom from any specified place. The complainant’s personal situation may change and she may be in another jurisdiction at the time of the trial. Even then every means available should be implemented to ensure that the jury has no idea the evidence is being taken from any specified source, in order to prevent prejudice to the accused and impermissible speculation by the jury.
Consequently there will be an order pursuant to section 13(2) and if not pursuant to s 13A(2) of the Evidence Act that the evidence of the complainant ‘be given outside the trial court and transmitted to the trial court by means of closed-circuit television’, but no more. The question of a friend or relative being present and whether the court should be closed are matters for the trial judge, but of course such orders would be common place once the primary order for taking CCTV evidence is made.
There are two final considerations. The first is that document management would have to be carefully considered by both parties. The process should be monitored by the court and eventually the trial judge. For that purpose I propose setting a directions hearing in advance of the trial with a view to fashioning appropriate orders for the purposes of ensuring documents that may need to be referred to by the witness are available and accessible. I note also that there is the electronic capacity these days for such documents to be imaged at each end of the video-stream.
The parties should be ready to consider orders requiring the defence to nominate in writing the documents and other items it requires the prosecution to have available when the witness is called, to lodge in sealed packets such other items that it does not for its own forensic reasons want the prosecution to know about, and to advise of any special equipment that might be necessary to show such items, such as video equipment and the like. The prosecution will also need to ensure there is a mechanism in place to protect the security of the accused’s sealed items in the meantime if that becomes necessary. As things presently stand, this aspect of the arrangements remains in an unsatisfactory state.
The second consideration is the time management issue. This will be particularly acute if the evidence is taken from Western Australia, where there is a considerable time difference. Obviously if court sessions commence at 10.00 am in Adelaide this would translate to early morning in Western Australia, so that the parties must plan sitting arrangements in advance in conjunction with the trial judge in order to accommodate the time differential. As mentioned earlier this is remedied by the proposal to sit during regular court times. It might also be noted that the court retains a roving discretion to vary or revoke at any time orders relating to special arrangements designed to protect the witness: ss 13(8), 13A(13) Evidence Act. Each party has liberty to apply on short notice as they may be so advised.

Of course the trial judge would have to craft quite careful directions as to these arrangements in the first place in terms of section 13(7) of the Evidence Act, tailored to meet the special circumstances of the case as and when the need so arises, as it is very likely to: R v Amjad.[16]
[16] [2010] SASCFC 68