R v Matthews

[2018] NSWCCA 7

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Matthews [2018] NSWCCA 7

Hearing dates:

5 February 2018

Date of orders:

05 February 2018

Decision date:

07 February 2018

Before:

Payne JA at [1]
Garling J at [1]
Hidden AJ at [1]

Decision:

(1)   Access to Court of Criminal Appeal file refused save with leave of a judge of the Court.

 

(2) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the Court orders that there be no publication of any information that may tend to identify the respondent in these proceedings until proceedings involving a jury have concluded in the District Court. This order is made on the ground that it is necessary in order to prevent prejudice to the proper administration of justice.

 

(3) Application for leave to appeal pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW) is granted.

 

(4)   Appeal allowed.

 

(5)   The following decisions of his Honour Maiden DCJ made on 30 January 2018 are set aside:

 

(a) to require the complainant to provide a further proof of evidence;

 

(b) to prevent the Crown from calling the complainant unless the further proof of evidence is provided;

 

(c) to require the complainant to give evidence on audio visual link from the precincts of the District Court in Sydney

 

(6)   The matter is remitted to the District Court for continuation of the trial

 Note: Nothing in these orders prevents the respondent from making such further application as may be appropriate in respect of the evidence by audio visual link for any reason which may arise in the course of the trial.

Catchwords:

CRIMINAL LAW – s 5F appeal – interlocutory judgment or order – whether trial judge erred in requiring Crown to provide a further statement from complainant - whether trial judge erred in requiring complainant to travel from country NSW to Sydney to give evidence via audio visual link from Sydney court complex

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Interpretation Act 1987 (NSW)

Cases Cited:

AF v R [2015] NSWCCA 35
House v King [1936] HCA 40; 55 CLR 499
KN v R [2017] NSWCCA 249
O’Connor v Healy (1961) 69 SR (NSW) 111
R v Steffan (1993) 30 NSWLR 633
Richardson v The Queen [1974] HCA 19; 131 CLR 116
Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397

Texts Cited:

None

Category:

Principal judgment

Parties:

Crown (Applicant)
Shane David Matthews (Respondent)

Representation:

Counsel:
N J Adams / N Keay (Applicant)
S Goodwin (Respondent)

  Solicitors:
Solicitor for Public Prosecutions (Applicant)

File Number(s):

2014/00246937

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the Court orders that there be no publication of any information that may tend to identify the respondent in these proceedings until proceedings involving a jury have concluded in the District Court. This order is made on the ground that it is necessary in order to prevent prejudice to the proper administration of justice. Under s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) publication of the name of the complainant or anything which would identify the complainant is not permitted.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

30 January 2018

Before:

Maiden SC DCJ

File Number(s):

2014/246937

Judgment

1. THE COURT: On 5 February 2018, this Court heard an urgent application for leave to appeal bought under s 5F(2) of the Criminal Appeal Act 1912 (NSW) by the Crown against two orders made by Maiden SC DCJ on 30 January 2018. This Court was informed that a jury was to be empanelled on 5 February 2018.

2. At the conclusion of the hearing on the morning of 5 February, the Court announced the following orders:

1. Access to Court of Criminal Appeal file refused save with leave of a judge of the Court.

2. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the Court orders that there be no publication of any information that may tend to identify the respondent in these proceedings until proceedings involving a jury have concluded in the District Court. This order is made on the ground that it is necessary in order to prevent prejudice to the proper administration of justice.

3. Application for leave to appeal pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW) is granted.

4. Appeal allowed.

5. The following decisions of his Honour Maiden DCJ made on 30 January 2018 are set aside:

1. to require the complainant to provide a further proof of evidence;

2. to prevent the Crown from calling the complainant unless the further proof of evidence is provided;

3. to require the complainant to give evidence on audio visual link from the precincts of the District Court in Sydney

6. The matter is remitted to the District Court for continuation of the trial.

3. The Court noted that “nothing in these orders prevents the respondent from making such further application as may be appropriate in respect of the evidence by audio visual link for any reason which may arise in the course of the trial.”

4. What follows comprises our reasons for making these orders. Given that the trial is ongoing and the parties sought guidance from this Court about the operation of various statutory provisions relevant to the conduct of the trial, these reasons have been produced in haste and will be necessarily relatively brief.

Brief facts

5. The respondent is charged with two counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW), the circumstances of the aggravation being that the respondent, at the time of the offence, inflicted actual bodily harm on the complainant. The respondent is also charged with two counts of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act. The respondent is further charged that he incited the complainant to commit an act of indecency with him, contrary to s 61(2) of the Crimes Act.

6. The trial of the respondent was initially listed to commence on 21 February 2017. Unfortunately the District Court judge listed to hear the matter, who was not the present trial judge, was not in a position to hear the trial, but his Honour dealt with pre-trial issues on the voir dire over four days. The matter was then stood over for trial to January 29, 2018.

7. The respondent’s trial commenced before Maiden SC DCJ on 29 January 2018. His Honour dealt with a number of pre-trial issues on that day and the following day, 30 January 2018. A jury had not then been empanelled. This Court has been provided with a transcript of the hearing on those days.

Orders concerning the form of the complainant’s evidence

8. The first group of issues concern the form of the complainant’s evidence. That evidence had been served long ago on the respondent for the purposes of the committal proceedings. The evidence took the form of a video together with a transcript of a series of electronically recorded questions and answers given by the complainant to the police. The evidence comprised two separate interviews which were served under cover of a statement containing a jurat by which the complainant declared that the content of the recorded interviews was true and correct. It was uncontroversial on this appeal that, pursuant to ss 74 and 79(1) of the Criminal Procedure Act 1986 (NSW), the prosecution evidence, for the purposes of disclosure to the defence and the committal proceedings, is to be in written form and that a written statement may be in the form of questions and answers.

9. Counsel for the Crown and the respondent had cooperated to agree which parts of the electronically recorded questions and answers would not be sought to be led by the Crown from the complainant as they were irrelevant. Agreement had been reached.

10. Although the Crown had originally sought to lead evidence in chief from the complainant by playing the video of the relevant questions and answers, the trial judge ruled that this was not permissible. No complaint is made about that ruling.

11. Accordingly, the position prior to the first group of orders the subject of this application for leave to appeal being made was that the Crown would seek at the trial to lead evidence viva voce from the complainant, based on the amended record of questions and answers settled with the respondent. The Crown did not propose to tender the video or the amended record of questions and answers.

12. On 30 January 2018, although no application was made by counsel for the Crown or the respondent about the issue, his Honour made an order requiring the Crown to take a further proof of evidence from the complainant and to provide that document to the Court and representatives of the accused. His Honour further ordered that the Crown be prevented from leading evidence from the complainant in the trial until that further proof of evidence was provided.

13. His Honour’s reasons for doing so may be summarised as follows:

1. to narrow the evidence such that it included only relevant evidence, as requiring a jury to “distil” relevant parts of the Crown case “…in my mind is just too hard and requires revision”. (T3.1-4, 14-19). “It will make it difficult not only for everyone involved in the presentation of the evidence, but also for a jury to comprehend as to what is relevant and irrelevant” (T3.21-26)

2. having the “DPP or whoever” prepare a statement limited to the issues with which the accused has been charged and relevant here so as to avoid unnecessary time being wasted, and to confine the complainant to those matters that are allowed ordinarily in the trial, and to avoid unnecessarily lengthy responses and “rambling” (T2.38-45).

Orders concerning the place from which the complainant was allowed to give evidence

14. The second group of orders sought to be challenged in this application for leave to appeal involve the place from which the complainant was allowed to give evidence.

15. Although no formal application was made, the Crown proposed that the complainant be permitted to give evidence by audio visual link from a Local Court near her home in northern NSW, pursuant to s 294B(3) of the Criminal Procedure Act. No evidence was led before the trial judge by either party on this issue, although the trial judge appears to have taken into account material referred to by the Crown in support of its unsuccessful application to lead the electronic record of questions and answers between the complainant and the police as the complainant’s evidence in chief. There was some evidence that the complainant suffered from a mental illness at or about the time of the offences.

16. The trial judge was informed that the complainant would be giving evidence from a Local Court in New South Wales in the north of the state. Counsel for the respondent did not oppose the application by the Crown to call evidence via audio visual link from a remote location. Counsel for the respondent made clear that her agreement was subject to the calibre and quality of the video feed being acceptable and that the parties would be able to overcome the usual difficulties inherent in video evidence, particularly where cross-examination on documents is concerned.

17. Counsel for the respondent submitted in this Court that there is now an issue about two pieces of footage that she may wish to show the complainant. Counsel has been unable to obtain an assurance from the Crown that the jury will be able to view the complainant as she watches the recordings being played “were it to eventuate in the trial”. As will become apparent, this is not an issue that the trial judge has yet addressed.

18. The trial judge made an order that the complainant be brought to Sydney in order to give evidence by audio visual link from the precincts of the Downing Centre. His Honour’s reasons for so concluding were:

1. the complainant is unmedicated and untreated by a medical practitioner and, in his Honour’s opinion, requires the assistance of a support person who can support her and report on her progress. If the complainant is in an unknown location, it would be difficult for the Court to monitor or assist her in properly answering questions (T5.11-20); and

2. some of the documents that may need to be put to the complainant are “what might be said to be disturbing”. The Court is located near Royal Prince Alfred Hospital where the complainant has previously been treated. While acknowledging that there are mental health facilities in country NSW, his Honour noted they are sparse and that if mental health assistance is required, “…I have sought to have the complainant to come to this Registry where certainty cannot be guaranteed but at least is known to those of us in this room.” (T5.23-35).

19. On the application in this Court, the Crown led evidence, without objection, from Ms Ellen Hile in an affidavit sworn 2 February 2018. Ms Hile, the solicitor for the Crown, stated that the complainant had informed her prior to trial that it was her preference to give evidence by video link based at a location close to her home in northern New South Wales so as to reduce the level of trauma she would experience. Ms Hile said that she had arranged audio visual facilities at a Local Court in regional New South Wales with the relevant technological infrastructure. A remote witness room was allocated for the complainant to give evidence commencing on 30 January 2018 and continuing. Ms Hile also said that she had spoken to a witness assistance officer to arrange court support for the complainant. A booking was made for court support from a domestic violence support scheme located in close proximity to the Local Court. The support person would be in the room while the complainant gave evidence.

Submissions of the parties

20. On the appeal, whilst each party advanced submissions to assist the Court in dealing with this urgent matter, neither counsel for the Crown or the respondent sought to support the trial judge’s orders or the reasons his Honour gave for making those orders.

21. The Crown submitted that all of the orders made by the trial judge were interlocutory orders within the meaning of s 5F of the Criminal Appeal Act. The Crown submitted that the trial judge had no power to order the Crown to provide a further proof of evidence or to direct the Crown about the order they were permitted to call witnesses: Saffronv Director of Public Prosecutions (1989) 16 NSWLR 397; Richardson v The Queen [1974] HCA 19; 131 CLR 116. Even if the trial judge had that power, it was submitted that the exercise of his discretion miscarried here as there was no application by the respondent for an additional proof of evidence, no evidence that there was any utility in an additional proof of evidence being provided in circumstances where the trial judge had already ruled that the written evidence of the complainant should not be placed before the jury and prejudice to the Crown was occasioned by forbidding the complainant, the Crown’s critical witness, from giving evidence at the commencement of the trial.

22. The respondent submitted that the orders made by the trial judge concerning provision of a further proof of evidence from the complainant were interlocutory orders within the meaning of s 5F of the Criminal Appeal Act. The respondent did not support the reasoning of the trial judge for the making of the orders or advance any alternative basis to support those reasons.

23. In relation to the order that the complainant travel to Sydney to give evidence via audio visual link from the precincts of the Downing Centre, the Crown submitted that the complainant was entitled under s 294B of the Criminal Procedure Act to give evidence via audio visual link from a place in New South Wales and that the trial judge had no power to require the complainant to travel to Sydney to exercise that entitlement. Even if the trial judge had that power, it was submitted that the exercise of his discretion miscarried here as there was no application by the respondent for the complainant to travel to Sydney, no evidence that there was any utility in the complainant travelling to Sydney and the trial judge ignored a relevant consideration being the complainant’s expressed wish to give evidence from her home town where she had available support.

24. The respondent did not support the reasoning of the trial judge for the making of the orders. It was submitted, however, that this order was about the manner of giving evidence and thus not an interlocutory order within the meaning of s 5F of the Criminal Appeal Act. The respondent submitted that there was no authority dealing with whether a complainant was entitled under s 294B of the Criminal Procedure Act to give evidence by audio visual link from a “place” in New South Wales outside the city or town where the trial was being conducted. The respondent also submitted that the trial judge had power to make the order that he did and that this Court should not make any orders forbidding the respondent from making additional applications to the trial judge if the existing arrangements for the complainant giving evidence via audio visual link from a remote location proved unsuitable.

Consideration: the orders in relation to the complainant’s proof of evidence

25. The first question is whether the orders made by the trial judge were “interlocutory orders” within the meaning of s 5F(2) of the Criminal Appeal Act. Counsel for both the Crown and the respondent submitted that this first group of orders were interlocutory orders within the meaning of s 5F(2).

26. Section 5F of the Criminal Appeal Act provides, relevantly, as follows:

5F Appeal against interlocutory judgment or order

(1) This section applies to:

(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and

…

(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.

…

(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case.

(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.

(5) The Court of Criminal Appeal:

(a) may affirm or vacate the judgment, order, decision or ruling appealed against, and

(b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against.”

…

27. It is clear that the jurisdiction of this Court to grant leave to appeal under s 5F(2) of the Criminal Appeal Act is limited to interlocutory judgments or orders. Neither of the matters the subject of complaint here involve an interlocutory judgment. The question is whether what his Honour did amounts to an “interlocutory order”.

28. That question was addressed most recently in KN v R [2017] NSWCCA 249 at [55]–[56], which in turn referred to the decisions in AF v R [2015] NSWCCA 35 at [32] and R v Steffan (1993) 30 NSWLR 633 at 636. A judgment or order in the sense identified in those authorities is “the decision of a court which determines the proceedings (or an identifiable separate part of them) and which is entered in the records of the court” or “a command by a court that something be done (or not done)”. The essence of a court order is that it is a command to someone that a thing be done or not done which is enforceable by the Court should there be non-compliance: KN v R at [56].

27. It is clear that a ruling concerned with “the manner in which evidence may be given” is not a matter that engages the jurisdiction of this Court under s 5F(2): KN v R at [55]-[56]; AF v R at [32]. While questions may arise about the scope of s 5F(3A), and were canvassed in writing by the parties, the conclusion that we have reached makes it unnecessary to address or determine those questions in this case.

28. Whether or not an order of the court is one falling within the description in s 5F is notoriously difficult. As R A Hulme J, (Hoeben CJ at CL and Harrison J agreeing) said in AF v R at [31]:

“It has been acknowledged that there is no bright line test for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other… .”

31. In order to amount to an interlocutory order within the meaning of s 5F(2), what must be established is that the court has made a command that something be done (or not be done), which is enforceable by the court should there be non-compliance.

32. In our view, each of the first group of orders made by the trial judge is of that character and this Court has jurisdiction to consider the matter. This is because the trial judge’s decision was a command that the Crown provide a further proof of evidence prior to the complainant being permitted to give evidence in the criminal trial. By those orders, the Crown was prevented from calling the complainant in its case until it had complied. The orders were enforceable by the court should there be non-compliance. Whilst there remains no “bright line” distinction, this is sufficient to constitute an interlocutory order for the purposes of s 5F.

33. The next question is whether the trial judge had power to make the orders that his Honour made. The Crown submission that his Honour had no power to make these orders should be rejected. The primary duty of a trial judge in a criminal trial is to ensure a fair trial according to law. That may involve innovative orders directed to the Crown in order to ensure fairness. Whilst it is true, as the Crown submitted, that the trial judge in making the present orders does not appear to have appreciated the different functions of investigators and prosecutors, this of itself is not a matter affecting his inherent and implied powers to ensure fairness. It is possible to imagine circumstances where, despite the obvious limitations imposed by the principles described in cases such as Whitehorn and Saffron, it would be appropriate for a trial judge to make an order directing the Crown to produce a statement from a witness before being permitted to call that witness to give evidence in the trial. It is both unnecessary and undesirable to try and identify the circumstances in which such an order might properly be made.

34. Despite the existence of a power to make the orders which are challenged, in the present case it is clear that the exercise of the trial judge’s discretion miscarried and that a House v King [1936] HCA 40; 55 CLR 499 error has been established for the following reasons:

1. first, it was clear that no application was made by the respondent for an additional proof of evidence to be obtained from the complainant. Nor was any submission made that the respondent would be prejudiced unless the additional proof of evidence was provided. This was not a case where, despite the absence of complaint, the trial judge was required to intervene to ensure a fair trial;

2. secondly, there was no evidence that there was any utility in an additional proof of evidence being obtained from the complainant in circumstances where the trial judge had already ruled that the complainant’s evidence was to be given viva voce;

3. thirdly, the trial judge took into account an irrelevant consideration. The document agreed between the parties which derived from the questions and answers between the complainant and the police was not going to be before the jury. To require the preparation of a further document in the circumstances of this case was impermissibly to enter into the arena and attempt to direct, in advance, the content of the Crown’s questioning of the complainant; and

4. fourthly, the trial judge failed to take into account a relevant consideration namely the prejudice to the Crown which would be occasioned by forbidding the complainant, the Crown’s critical witness, from giving evidence at the commencement of the trial.

35. The trial judge’s order that the Crown must produce a further statement from the complainant should be set aside. It follows that his Honour’s subsequent order preventing the Crown from calling evidence from the complainant until the proof of evidence is provided must also be set aside.

Consideration: the orders in relation to the audio visual evidence

36. The trial judge’s order that the complainant travel to Sydney as a condition of her being permitted to give evidence by audio visual link raises different issues.

37. Section 294B of the Criminal Procedure Act provides:

294B Giving of evidence by complainant in prescribed sexual offence proceedings--alternative arrangements

(1) This section applies to evidence given in proceedings (including a new trial) in respect of a prescribed sexual offence.

(1A) This section applies (with any necessary modifications) to the giving of evidence in apprehended violence order proceedings (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 ) by a protected person in the same way as it applies to the giving of evidence in criminal proceedings by a complainant but only if:

(a) the defendant in the proceedings is a person who is charged with a prescribed sexual offence, and

(b) the protected person is the alleged victim of the offence.

(2) This section does not apply to or in respect of the giving of evidence by a vulnerable person if Division 4 of Part 6 applies to the giving of that evidence.

(2A) This section applies in addition to Part 4B, if the complainant is a domestic violence complainant.

(3) A complainant who gives evidence to which this section applies is entitled (but may choose not):

(a) to give that evidence from a place other than the courtroom by means of closed-circuit television facilities or other technology that enables communication between that place and the courtroom, or

(b) to give that evidence by use of alternative arrangements made to restrict contact (including visual contact) between the complainant and the accused person or any other person or persons in the courtroom, including the following:

(i) use of screens,

(ii) planned seating arrangements for people who have an interest in the proceedings (including the level at which they are seated and the people in the complainant's line of vision).

(4) If, to enable evidence to be given as referred to in subsection (3), the court considers it appropriate to do so, the court may adjourn the proceeding or any part of the proceeding from the courtroom to another court or place.

(5) Despite subsection (3) (a), a complainant must not give evidence as referred to in that paragraph if a court, on its own initiative or on application by a party to the proceeding, orders that such means not be used.

(6) A court may make an order under subsection (5) only if it is satisfied that there are special reasons, in the interests of justice, for the complainant's evidence not to be given by such means.

(7) In any proceedings in which evidence is given as referred to in subsection (3), the judge must:

(a) inform the jury that it is standard procedure for complainants' evidence in such cases to be given by those means or use of those arrangements, and

(b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because it is given by those means or by use of those arrangements.

(8) Any place outside the courtroom from which a complainant gives evidence under this section is taken to be part of the courtroom in which the proceeding is being held.

(9) If a complainant gives evidence as referred to in subsection (3) in a place other than a courtroom, the court may order that a court officer be present at that place.

(10) This section extends to evidence given in proceedings instituted before the commencement of this section, including a new trial that was ordered to take place before that commencement and proceedings that have been partly heard.

38. We have concluded the order made by the trial judge was in the nature of a command that the complainant attend the Downing Centre in Sydney in order to exercise the entitlement she had under s 294B(3) of the Criminal Procedure Act. That order was capable of being enforced. It follows that it was an interlocutory order within the meaning of s 5F of the Criminal Appeal Act.

39. It is tolerably clear that s 294B of the Criminal Procedure Act applies in this case as does the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) and in particular s 5B. This is a case involving a prescribed sexual offence within the meaning of s 294B(1). The complainant is the person referred to in s 294B(3), who is entitled to give that evidence from a place other than the courtroom by means of closed-circuit television facilities or other technology that enables communication between that place and the courtroom. The powers of the trial judge to order that the means identified in ss (3) not be used are identified in ss 294B(5) and (6) as being limited to cases where there are “special reasons, in the interests of justice, for the complainant's evidence not to be given by such means.”

40. The reservation expressed by this Court in KN v R about the “extraterritorial” effect of s 294B does not arise in the present case. That was a case where the question was whether New South Wales legislation could apply to a person giving evidence from a “place” overseas. In the present case, there is no question of “extraterritorial” application of the legislation, as the complainant will give evidence from a Local Court in New South Wales. Accordingly we reject the respondent’s tentative submission that the only power available to the trial judge to permit audio visual evidence was one pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act. The urgency with which this case has been heard makes it inappropriate for there to be any broader discussion of the powers of the trial judge to order audio visual evidence.

41. In our view it is clear that the term “a place other than the courtroom” when used in s 294B(3) refers, at least, to any place in New South Wales other than the particular court complex where the trial is taking place. A “place other than the courtroom” in s 294B is not, as the respondent submits, limited to the particular court precinct where the trial is being conducted or to the particular town or city where the trial is being conducted. Such a limitation is not warranted by the subject matter, scope and purpose of the Act, which is plainly designed to facilitate audio visual evidence from complainants in prescribed sexual offence cases. To impose a limitation on where a complainant may give audio visual evidence from by reading down the apparently wide word of “a place other than the courtroom” is to impose a gloss on the section. As the respondent correctly identifies, where the Act applies to is not addressed by either the Explanatory Note or the Second Reading speech. The limitations on the entitlement of a complainant to give evidence from “a place other than the courtroom” are identified in ss 294B(5) and (6). Whether that “place” may be a place outside New South Wales does not arise in this case and any wider conclusion about the “extraterritorial” effect of s 294B, which would involve a consideration of matters such as the presumption that legislation is not to have extraterritorial operation, s 12 of the Interpretation Act1987 (NSW) and cases such as O’Connor v Healy (1961) 69 SR (NSW) 111 at 114 per Jacobs JA, does not arise.

42. In our view, the trial judge had power to make the orders he did pursuant to ss 294B(5) and (6) if he concluded that there were “special reasons, in the interests of justice, for the complainant's evidence not to be given by such means.” We will assume for present purposes that his Honour reached such a conclusion.

43. We have found, however, that the trial judge’s discretionary decision requiring the complainant to attend the Sydney District Court miscarried. As we have said, it is the function of the trial judge to ensure a fair trial according to law.

44. In making his discretionary decision to require the complainant to come to Sydney, it appears that his Honour took judicial notice of the relative availability of mental health facilities in Sydney and country New South Wales and embarked on an exercise he was not asked by either party to address, namely, how any issues in relation to the complainant’s mental health may best be treated by various mental health institutions throughout NSW. No application was made by the respondent for the complainant to travel to Sydney. There was no relevant or contemporary evidence that there was any utility in the complainant travelling to Sydney. The trial judge failed to take into account a relevant consideration being the complainant’s expressed wish to give evidence from her home town where she had available support. Accordingly, House v King error has been established and the trial judge’s order requiring the complainant to travel to Sydney must be set aside.

45. Before leaving this issue we should say that we accept the respondent’s submission that mental health issues relating to a person giving evidence under s 294B(3) may, in an appropriate case, be taken into account by a trial judge considering the application of s 294B(6). That does not mean, however, that the trial judge in this case was in any position to make an assessment about whether those mental health needs were more likely to be met in Sydney rather than the country location where the complainant has chosen to give evidence.

46. Finally, it was made clear on the application in this Court, however, that counsel for the respondent now wishes to ventilate an issue which was not considered by his Honour in his ruling. That issue raises the practicality of the respondent’s counsel showing the complainant two pieces of recorded footage which have only recently been disclosed. Nothing in these reasons should be understood as preventing counsel for the respondent from making an application for an order, including an order pursuant to s 294B(6), that there are “special reasons” for requiring the complainant to give evidence other than under the regime established by s 294B(3). That is the effect of the notation to the orders we made on 5 February 2018 set out at [3] above.

Conclusion

47. For these reasons, the Court made the orders set out at [2] above on 5 February 2018.

**********

Decision last updated: 30 May 2018