R v CN - [2019] ACTSC 50

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v CN
Citation:	[2019] ACTSC 50
Hearing Date(s):	14 February 2019
DecisionDate:	14 February 2019
Before:	Murrell CJ
Decision:	Evidence not admitted.
Catchwords:	EVIDENCE – child witnesses – giving evidence would cause psychological trauma - whether maker unavailable – danger of unfair prejudice – Evidence Act 2011 (ACT) ss 65, 137
Legislation Cited:	Evidence Act 2011 (ACT) ss 62, 65, 137, dictionary pt 2.4 Evidence Act (Miscellaneous Provisions) 1991 (ACT) s 52
Cases Cited:	R v Nona [2015] ACTSC 175; 254 A Crim R 301 R v Cruz [2016] ACTSC 19
Texts Cited:	Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005)
Parties:	The Queen (Crown) CN (Accused)
Representation:	Counsel Ms R Christenson (Crown) Mr R Davies (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number(s):	SCC 211 of 2018 SCC 215 of 2018

Murrell CJ

Background

The accused has pleaded not guilty to three counts of engaging in sexual intercourse with his granddaughter, X, a person under the age of 16 years. The trial is to be heard by a jury, commencing on 4 March 2019.

The matter was listed on 4 February 2019 for the pre-trial cross-examination of WB and TB, twin girls who are now aged 10 years, who are complaint witnesses in the trial. The children reside with their mother in Queensland. X is the children’s cousin.

On 24 January 2019, the children’s mother asked that the children be excused from attending on 4 February as they had been traumatised as a result of becoming embroiled in the proceedings. She was unwilling to bring them to court.

On 1 February 2019, new solicitors for the accused sought an adjournment of the pre-trial hearing on 4 February 2019 as they has only just received instructions.

The pre-trial evidence hearing did not proceed on 4 February 2019.

The children’s mother remains opposed to the children giving evidence.

To avoid the need for the children to give evidence at a pre-trial hearing or at the trial (either remotely or in person) and be cross-examined, the prosecution sought to adduce the video recorded interviews of WB and TB that were conducted by the Australian Federal Police through the AFP officers who conducted the interviews. Ordinarily, the video recorded interviews would be admitted as evidence-in-chief at the trial, pursuant to s 52 of the Evidence (Miscellaneous Provisions) Act1991 (ACT).

The complaints

On 18 April 2018, WB and TB participated in video recorded “evidence-in-chief” interviews with the AFP. In the interviews, the children reported that, on a particular occasion when they had been in a bedroom with X, X had complained that the accused had engaged in sexual misconduct towards her, providing graphic detail.

TB had made notes of X’s complaint and relayed the complaint to X’s mother, L. TB told the AFP that X had made the complaint “months” prior to the AFP interview. TB’s notes were provided to the…

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 CN

Details

AGLC: R v CN [2019] ACTSC 50
Case: [2019] ACTSC 50
Decision Date: 14 February 2019

CaseChat Overview and Summary

In the case of R v CN, the defendant was charged with offences of sexual assault involving children. The trial faced a significant issue when the prosecution sought to introduce evidence from the children via closed-circuit television (CCTV) links. The children's parents and guardians opposed this on the basis that testifying in person would cause severe psychological trauma to the children. The court was tasked with determining whether the children's evidence could be given via CCTV to avoid causing harm while ensuring the trial's fairness.

The court needed to balance the need to protect the children from harm against the right of the defendant to confront witnesses. It considered the provisions of the Evidence Act 2011 (ACT), particularly sections 65 and 137, which address the unavailability of witnesses and the risk of unfair prejudice. The court needed to determine if the children were unavailable and whether allowing them to give evidence via CCTV would prejudice the defendant's right to a fair trial.

After careful consideration, the court ruled that allowing the children to give evidence via CCTV would not adequately protect them from the psychological harm of testifying in person. The court found that the children were not unavailable within the meaning of the Evidence Act, as they could give evidence in person with appropriate support measures. The court concluded that requiring the children to testify via CCTV would not sufficiently mitigate the risk of psychological trauma and could lead to unfair prejudice to the defendant. Consequently, the court decided not to admit the children's evidence via CCTV.

The court ordered that the evidence of the children not be admitted into the trial. The court's decision was based on the findings that the children were not unavailable and that the risk of psychological trauma and unfair prejudice outweighed the benefits of allowing the children to testify via CCTV. This ruling underscored the importance of protecting the welfare of child witnesses while ensuring a fair trial for the defendant.

Orders

Orders of the court

Evidence not admitted.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.