R v DK

[2008] ACTSC 51

R v DK
[2008] ACTSC 51 (30 April 2008)

CRIMINAL LAW – Evidence (Miscellaneous Provisions) Act 1991 (ACT) – sexual offence proceedings – giving of evidence by complainant by closed circuit television (CCTV) link from place other than courtroom: s 43 of Act – discretion of court to make orders specifying who, other than a court officer, may or may not be present with complainant at other place during complainant’s giving of evidence: s 44(3) of Act

Held:  Interests of justice and principle of open court require court to scrutinise jealously factors by which discretion is to be exercised under s 44(3) – departures from open justice should be done so as to preserve openness and transparency of proceedings to greatest degree possible, consistent with purpose of legislation – application dismissed

Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 43, 44(3)

Dickason v Dickason (1913) 17 CLR 50 cited
John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 cited
R v Hamilton (1930) 30 SR (NSW) 277 cited
Scott v Scott [1913] AC 417 cited
The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) (2006) 155 FCR 216 cited
The Queen v Tait (1979) 46 FLR 386 cited

No. SCC 91 of 2006

Judge:           Rares J
Supreme Court of the ACT
Date:            30 April 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCC 91 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN: R

AND: DK

ORDER

Judge:  Rares J
Date:  30 April 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. The Crown’s application for an officer of the Director of Public Prosecutions office to be present in the room in which the complainant will be giving evidence, by use of a closed circuit television link, is refused.

1. In this sexual assault matter, the Crown has asked for an officer of the Director of Public Prosecutions office to be present in the room in which the complainant will be giving evidence, by use of a closed circuit television link.

1. I am of opinion that the use of such links as provided in s 43 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) is a departure from the principles of open justice. In those circumstances, the Court must jealously scrutinise the factors by which its discretion is to be exercised under s 44(3) in ordering that third parties may or may not be present at the time of the taking of evidence in the place where the complainant is giving evidence.

1. If it is necessary in the interests of justice, an order would be made that a third person, other than an officer of the court needed to operate the machinery and to swear the witness, can be present in the other room:  cf Dickason v Dickason (1913) 17 CLR 50 at 51. Or, if all persons who are proposed to be present in that room can be properly observed, as they would be, were the evidence given in open court, it may be open to make such an order. However, I am of opinion that in the ordinary course it would be wrong to order that a particular or special person be present, but unseen (to those in the court room), while in the place where the complainant is giving evidence.

1. Different considerations may apply in the case of a child or in the case of particular witnesses whose circumstances make such an order necessary in the interests of justice:  Scott v Scott [1913] AC 417 at 437-438 per Viscount Haldane LC; R v Hamilton (1930) 30 SR (NSW) 277; The Queen v Tait (1979) 46 FLR 386 at 404 per Brennan, Deane and Gallop JJ; cp John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476G-477D per McHugh JA; see too The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) (2006) 155 FCR 216 at 220-223 [18]-[29]. Where departures from open justice occur, as this legislation clearly authorises and requires be done, they should be done in a way in which the openness and transparency of the proceedings is preserved to the greatest degree possible, consistent with the desire of the legislation.

1. In my opinion, no basis has been shown for permitting a third party, other than a court officer, to be present in the place in which the complainant is to give evidence.  I reject the application.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Rares

Associate:

Date:     13 June 2008

Counsel for the Crown:  M Jones          

Solicitor for the Crown:  Director of Public Prosecutions for the ACT

Counsel for the Defendant:  S Gill

Solicitor for the Defendant:  Rachel Bird & Associates

Date of hearing:  30 April, 1 May 2008

Date of judgment:  30 April 2008