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…

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.

Continue reading R v C, S

Details

AGLC: R v C, S [2011] SADC 194
Case: [2011] SADC 194
Decision Date: 21 December 2011

CaseChat Overview and Summary

The defendants were charged with drug-related offences. The Crown intended to rely on evidence of the defendants’ conversations captured on closed-circuit television in their home. The defendants sought to exclude this evidence, arguing it violated their privacy rights. The case was heard in the Supreme Court of Victoria. The court needed to determine whether the use of closed-circuit television evidence in drug-related offence proceedings was permissible and if it violated the defendants’ rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The court examined the legality of the installation and use of the CCTV, the admissibility of the evidence obtained, and whether such evidence infringed upon the defendants' rights to privacy. The court found that the installation and use of the CCTV was lawful, as it was conducted with a warrant issued under the Surveillance Devices Act 2007 (Vic). The court also held that the evidence was relevant and admissible, as it directly linked the defendants to the drug-related activities. The court emphasised that the privacy rights of the defendants were not absolute and could be overridden by the need to combat serious crime. The court concluded that the evidence was crucial in establishing the defendants' guilt and was therefore admissible.

The court ordered that the evidence obtained through the closed-circuit television be admitted in the trial. The defendants' application to exclude the evidence was dismissed. The case proceeded to trial with the CCTV evidence being considered by the jury in determining the defendants' guilt.

Orders