R v Mccarthy - [2004] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCCARTHY
Reasons of His Honour Judge Muecke
15 July 2004
CRIMINAL LAW
Order made for the complainant in a rape trial to give her evidence in a cleared court - Application by The Advertiser for the court to make available a transcript of her evidence - relevant provisions of Evidence Act considered - application granted.
Evidence Act 1929 s 13, s 69, s 69A; District Court Act 1991 s 54(1), referred to.

R v MCCARTHY
[2004] SADC 98

The accused was charged with three counts of rape. The particulars alleged that, on 11 January 2003 at Ethelton, he had vaginal sexual intercourse with a young woman (“the complainant”) without her consent, that he had inserted a finger into her vagina without her consent, and that he had inserted a finger into her anus without her consent. On 1 August 2003 the accused was committed for trial in this court. On 1 November 2003 he was arraigned and pleaded not guilty to each count. On 4 December 2003 a trial was set to commence on Tuesday 6 July 2004.
On 15 January 2004 another Judge of this court made certain orders upon an application made by the Director of Public Prosecutions and dated 12 January 2004. That application was made on behalf of the complainant and sought an order that a screen, partition or one-way glass be placed to obscure her view of the accused during the giving of her evidence in the trial. A further order sought was that at that time she be accompanied by a relative, friend or social worker for the purpose of providing emotional support to her. Finally, an order was sought that the court be closed during her evidence at the trial. The grounds relied upon were that the complainant was the alleged victim of sexual offences to which the proceedings related and that it was desirable that she be protected from distress and embarrassment of giving her evidence whilst able to view the accused. The application was made pursuant to s 13 and s 69 of the Evidence Act 1929. The other Judge made orders in terms of the application
The trial commenced before me on Tuesday 6 July 2004. Before the complainant commenced giving her evidence in the afternoon of Wednesday 7 July 2004 I was asked by counsel for the Director of Public Prosecutions that the complainant’s father be the nominated relative pursuant to the order previously made by the other Judge. I was asked to allow the complainant’s father to sit next to her in the witness box, between the witness box and the dock. I indicated that I considered it appropriate that the complainant’s father sit in the body of the court and suggested that he sit in a place where he was visible to his daughter from the witness box. I exempted certain people, including some named persons, from the order that had been previously made to the effect that the court be closed during the complainant’s evidence.
With special arrangements in place the complainant commenced her evidence. She had not completed her evidence when the court adjourned on the afternoon of Wednesday 7 July 2004.
Before the trial resumed with the complainant’s evidence the next morning I heard an application by Ms Fiona Clark representing Channel 10. Ms Clark told me she was speaking on behalf of other media organisations in applying for access to the transcript of the complainant in the case. She submitted that it was quite a common practice in these matters, where evidence is given in closed court, that the media are provided with access to the transcript. Ms Clark sought access to the complainant’s evidence on an on-going basis.
S 69 of the Evidence Act1929 relevantly provides:
(1) Where a court considers it desirable in the interests of the administration of justice, or in order to prevent hardship or embarrassment to any person, to exercise the powers conferred by this section, it may order specified persons, or all persons except those specified, to absent themselves from the place in which the court is being held during the whole or any part of the proceedings before the court.
…
(2) The court may, on the application of a person against whom an order under subsection (1) operates, make available to him a transcript of evidence, and a record of proceedings, taken before the court during the operation of the order.
Following Ms Clark’s application on the morning of Thursday 8 July 2004 I indicated that I would consider it as having been made pursuant to s 69(2) of the said Act. I refused Ms Clark’s application but I indicated that I reserved the right to any person to make or renew such an application at the conclusion of the complainant’s evidence.
The complainant’s evidence concluded at about 11am that morning, Thursday 8 July 2004. After the complainant had withdrawn, and in the absence of the jury, Ms Alexandra Economou from The Advertiser made application to me to have access to the transcript of the complainant’s evidence. Ms Economou reiterated the points made earlier by Ms Clark from Channel 10. Ms Economou’s application was opposed by counsel for both the Director of Public Prosecutions and the accused. Counsel for the DPP submitted that “the Evidence Act clearly provides that complainants in matters of this nature should have the right to give their evidence in a closed court. That has happened. There is nothing that would warrant the provision of this material in terms of the need to provide a fair and accurate report … The need or the requirement that the media have the ability to report fairly and accurately is outweighed in this case by concerns regarding privacy of the complainant. It runs the risk that the whole thing becomes a little salacious.” Counsel for the accused supported counsel for the DPP’s opposition to the application.
I interpolate here that the trial had been the subject of media reporting both in The Advertiser, on television, and on radio. The Opening of counsel for the DPP had received publicity, including what was said would be the complainant’s evidence in the trial.
I granted Ms Economou’s application. I made available to Ms Economou and other members of the press the transcript of evidence, and a record of proceedings, taken before the court during the operation of the order that had been made pursuant to s 69 of the said Act on 15 January 2004.
There is no doubt that the court may, and often does, make orders providing special arrangements for the taking of evidence from a witness in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of a courtroom, or for any other proper reason. Special arrangements include allowing evidence to be given outside the courtroom and then transmitted to the courtroom by means of closed-circuit television; allowing for a screen, partition or one-way glass to be placed to obscure the witness’ view of a party to whom the evidence relates or some other person; and allowing a witness to be accompanied by a relative or friend for the purpose of providing emotional support. Any such order or orders must not be made if the order would prejudice any party to the proceedings, if it would relieve a witness from the obligation of giving sworn evidence, if it would relieve a witness from the obligation to submit to cross-examination, or if it would prevent the Judge or jury from seeing and hearing the witness while giving evidence.
All these powers and qualifications to them are contained in s 13 of the said Act.
It was my view when I granted Ms Economou’s application to make available a transcript of the complainant’s evidence (pursuant to s 69(2) of the said Act) that s 13 and s 69 of the said Act were enacted primarily to provide a court with power, in appropriate circumstances, to make special arrangements to protect witnesses in criminal proceedings from hardship or embarrassment during the taking of evidence from such a witness at a trial. It was my view that those sections should not, either separately or together, be used by a court to make an order which might operate, in practical terms, as an order suppressing evidence given in court from publication.
S 69A of the said Act makes special provision for suppression orders. It provides that where a court is satisfied that a suppression order should be made to prevent prejudice to the proper administration of justice, or to prevent undue hardship to an alleged victim of crime or to a witness or potential witness in criminal proceedings, the court may, subject to that section, make such an order.
No application was made in this matter to suppress evidence from publication pursuant to s69A of the said Act.
S 69(2) gives a broad discretion to the court to make available a transcript of evidence taken before the court when the court is cleared. My view was that the grounds advanced by both counsel in opposition to Ms Economou’s application pursuant to s 69(2) of the said Act, when that application was made subsequent to the complainant having completed her evidence and having left the courtroom, were not matters of sufficient principle or weight to justify a refusal of Ms Economou’s application.
That was sufficient to dispose of the application that was made before me. I indicate, however, that had an application been made pursuant to s 69A of the said Act seeking an order suppressing the complainant’s evidence from publication I would likely have refused to make such an order. The prosecutor’s Opening had been already reported in the press, albeit in a general sense and insofar as it related to some of what the complainant would say in evidence to support the Crown case against Mr McCarthy. Furthermore, I would have accorded substantial weight to the public interest in publication of information relating to court proceedings, and the consequential right of the news media to publish such information. In this regard, I note that s 54(1) of the District Court Act 1991 provides that, subject to that section, the Court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of a transcript of evidence taken by the Court in any proceedings. That sub-section is not referred to in s 54(3) of the said Act which allows the court to include a condition limiting the publication or use of material referred to in s 54(2) of the said Act which may be inspected or copied with the permission of the court. These provisions reflect the importance of the public interest in publication of information relating to the court’s proceedings and processes. In this case I would not have been satisfied that any undue hardship that may be suffered by the complainant (or any prejudice to the proper administration of justice) would have been of greater weight than the public interest and the consequential right of the news media to which I have referred. Accordingly, I would have refused to make an order pursuant to s 69A of the said Act.