R v Mitchell (No 5)
[2020] SASC 221
•7 October 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v MITCHELL & ORS (No 5)
[2020] SASC 221
Reasons for Ruling of the Honourable Justice Lovell
7 October 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER
CRIMINAL LAW - PROCEDURE - WITNESSES - POWERS OF JUDGE - HOW EVIDENCE TO BE GIVEN
The accused are jointly charged with murder. The one charge incorporates constructive murder pursuant to s 12A Criminal Law Consolidation Act 1935 (SA).
Application for special arrangements for prosecution witness - where accused opposed due to prejudice.
Application for mistrial - whether prejudice can be cured by a direction.
Held:
1. The application for special arrangements for the witness is granted.
2. The application for a mistrial is dismissed.
Evidence Act 1929 (SA) s 13; Supreme Court Act 1935 (SA) ss 25, 35, referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Question of Law Reserved (No 2 of 1997) (1998) 98 A Crim R 544; R v Griffis (1996) 67 SASR 170; R v Ivan Zoneff (No 2) [2000] SASC 70; The Queen v A2 [2019] HCA 35, considered.
R v MITCHELL & ORS (No 5)
[2020] SASC 221Criminal: Application for witness to give evidence via special arrangements
LOVELL J:
Overview
The background facts are set out in my earlier judgments and I do not intend to repeat them.
Mr Watts is a prosecution witness. After Mr Tenhoopen was arrested on this charge he shared a cell for one night with Mr Watts. Mr Tenhoopen and Mr Watts knew each other, although not well. Mr Watts alleged that Mr Tenhoopen made admissions to him about his involvement in the murder at Carousel Street, Para Vista. Following these admissions, Mr Watts called the police informant line and provided information to the police about what Mr Tenhoopen had told him.
Mr Watts commenced giving his evidence in court. He eventually requested, pursuant to s 13 of the Evidence Act 1929 (SA) (“the Act”) that he complete his evidence by means of CCTV. All accused objected to Mr Watts giving evidence by CCTV. The proper interpretation of s 13 of the Act was raised. I ruled that Mr Watts could continue his evidence by means of CCTV. My reasons for doing so follow.
Background
Mr Watts was expected to attend court to give evidence on 30 September 2020 but failed to appear. Upon application by the prosecution, I issued a subpoena for Mr Watts’s attendance the following day pursuant to s 25 of the Supreme Court Act 1935 (SA). Mr Watts attended court on 1 October 2020 and was scheduled to give evidence after the lunch break. However, he did not return to court following the lunch break. The prosecution sought a bench warrant for his arrest. Pursuant to s 35 of the Supreme Court Act 1935 (SA), I issued a bench warrant for his arrest and attendance before the court. The warrant was executed and Mr Watts was brought before the court on 6 October 2020.
The prosecution called Mr Watts. Arrangements were made for the accused to remain in their cells while Mr Watts was brought into the courtroom. When entering the court and walking past the dock Mr Watts held his hand up to his neck and head as if to shield himself – there was no one in the dock. He entered the witness box and it was only then that the accused were brought back into court. Upon seeing the accused, Mr Watts endeavoured to put a barrier between himself and the accused using his arms and the hood part of his jumper. The accused were to his left and he put the hood of his jumper over his head, or at least partially over his head, and his left arm up over the side of his head. He did not look at the accused and turned away from the dock. By this stage, the jury had entered the courtroom and witnessed his behaviour. Mr Watts’s behaviour could be interpreted as him being fearful of the accused. It may also have been a manifestation of his anxiety or possibly a combination of both anxiety and fear.
Mr Watts continued this behaviour while giving his affirmation to tell the truth. The prosecutor, Mr Preston, began his examination-in-chief. After a couple of questions, Mr Watts stated that he wished to retract his statement given to the police. The prosecutor asked one further question. Mr Watts repeated that he wished to retract his statement. Upon realising Mr Watts was not willing to answer questions, the prosecution requested the opportunity to make an application in the absence of the jury.
A debate took place in the absence of the jury as to the appropriate way to deal with Mr Watts’s apparent unwillingness to give evidence. Initially, Mr Preston stated that he may want to cross-examine Mr Watts and put propositions to him from the statement and Mr Watts could agree or disagree with those propositions. Such a course of action was strenuously opposed by all counsel.
On reflection, Mr Preston sought an adjournment to consider his position. I granted an adjournment to allow Mr Preston an opportunity to speak with Mr Watts. On returning to court, having spoken to Mr Watts, Mr Preston applied for Mr Watts to be granted permission to give evidence by CCTV pursuant to s 13 of the Act. Mr Preston stated:
I have spoken with Mr Watts again and he has indicated to me that he is clearly overwhelmed by the court atmosphere. His words were “their breathing down my neck”. He has affirmed that he is prepared to give truthful evidence that makes an application to give that evidence not by way of a screen but by way of a CCTV. I have spoken with my friends about that and they, not unreasonably I suppose, want to see either an affidavit or some basis on which the application is made. It seems to me we could do that one of two ways. We could get an affidavit which would take some time or alternatively we could stand the witness down and then afford him the opportunity to give evidence on the voir dire from the CCTV suite on the issue of why it is he wants CCTV.
Mr Boucaut QC, for the accused Mr Carver, opposed the application and also applied for a mistrial. Other counsel shared the concerns expressed by Mr Boucaut but, at that time, did not have instructions to join the application for a mistrial.
Mr Henchliffe QC, for Mr Rigney, submitted that Mr Watts needed to explain by affidavit the reasons for his application for his evidence to be given by CCTV. He submitted that while that was being done, counsel could obtain instructions in relation to the application for a mistrial. The matter was stood over for an affidavit to be obtained from Mr Watts.
On resumption, Mr Preston tendered an affidavit of Mr Watts relating to the s 13 application. The accused maintained their objection to the application, submitting that the affidavit material was insufficient to support the application. Irrespective of the outcome of the s 13 application, all counsel said they would be applying for a mistrial.
Given the application continued to be opposed, I decided to hear evidence from Mr Watts as to the reasons for his s 13 application. Whilst a s 13 application should be heard expeditiously, this was also an application for a mistrial. In the circumstances of this case, I considered it necessary for counsel to be able to explore the reasons for the application but also to question Mr Watts on his reasons for changing his attitude on withdrawing his statement. I considered that determination of the s 13 application was necessary before considering any mistrial application.
Section 13 Application
Mr Watts gave evidence on the voir dire. Mr Watts said he had not waited at court having been summonsed as he “didn’t want to give evidence” and he was “frightened”. He had made his concerns about giving evidence known to the police and possibly the DPP. The option of using CCTV was mentioned to him but he was told it was “better if I did it in the courtroom”. He was told he could do it (give evidence in court) but as it turned out he could not. He stated that he was scared of all of the accused, scared of repercussions. While in prison the previous year, he had been assaulted in the shower, not by any of the accused, but one of their “mates”. The assault left him with a fat lip and a black eye. He also stated that he was worried he would be seen as a “dog or a dobber” by other prisoners. He restated that he was worried about repercussions by the accused if he gave evidence against them. He gave no evidence that he had been directly threatened by any of the accused. Mr Watts had been, in the days leading up to giving evidence, in prison hospital suffering from chest pains and anxiety.
Mr Watts was also cross-examined about his police record. He agreed that his cooperation with the police had been used by his lawyer in submissions on sentence in the Murray Bridge Magistrates Court in early 2019.
I accept that Mr Watts, for the reasons he gave, was in fear before giving evidence and indeed, when giving evidence. It is likely that he suffered from anxiety before giving evidence. Counsel for the accused accepted, after Mr Watts had given evidence, that had the evidence been given earlier, he would have met the criteria to give evidence by CCTV. However, all accused maintained their objection to Mr Watts giving evidence by CCTV and all applied for a mistrial. Counsel argued that Mr Watts’s behaviour in front of the jury would inevitably lead to the jury inferring that he had been threatened by one or more of the accused. This was particularly so as he had wished to retract his statement when in court but, most likely, would not make such an application if giving evidence by CCTV. The accused argued that no direction could cure the prejudice they had suffered by Mr Watts’s conduct.
Mr Preston submitted that Mr Watts’s evidence satisfied the criteria under s 13 of the Act. Mr Preston submitted that s 13 permitted an application to be made at any stage in the evidence of a witness. The purpose and intent of s 13 was to allow persons such as Mr Watts to make such an application and that a direction pursuant to s 13(7) provided Parliament’s response to the prejudice involved in such an application being granted. Mr Preston submitted that the demeanour of Mr Watts was a matter for the jury to assess, as with any witness.
It is necessary to consider the terms of s 13 of the Act.
The Legislation
In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose. That is, the process begins with the text but, as the meaning of words can never be acontextual, the process must also begin by examining the context.[1] The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[2] Context, in its widest sense, and the purpose of the statute informs the interpretative task throughout.[3] Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[4]
[1] The Queen v A2 [2019] HCA 35 at [163] (Edelman J).
[2] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46–47 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[3] The Queen v A2 [2019] HCA 35 at [124] (Bell and Gageler JJ) (in the minority on the result).
[4] Alcan (NT) Alumina Pty Ltd v Commissoner of Territory Revenue (2009) 239 CLR 27 at 46–47 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
Section 13 of the Act permits a court to make special arrangements to protect witnesses giving evidence in court. The relevant parts of the legislation are as follows:
13—Special arrangements for protecting witnesses from embarrassment, distress etc when giving evidence
(1)Subject to this section, if—
(a) it is desirable to make special arrangements for taking evidence from a witness in a trial in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of the courtroom or for any other proper reason; and
(b) the facilities necessary for the special arrangements are readily available to the court and it is otherwise practicable to make the special arrangements; and
(c) the special arrangements can be made without prejudice to any party to the proceedings,
the court should, on its own initiative, order that special arrangements be made for taking the evidence of the witness.
…
(7)If, in a criminal trial, a court makes special arrangements for taking the evidence of a witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.
The purpose of s 13 is to protect witnesses from embarrassment, distress or from being intimidated by the atmosphere of the courtroom when giving evidence. It represents a clear policy decision that the special needs of witnesses deserve more consideration in relation to giving evidence.[5] Giving evidence should not be so daunting that people are deterred from reporting serious crimes or from assisting in the prosecution of crime.
[5] R v Griffis (1996) 67 SASR 170, 177.
The power to grant special arrangements for taking evidence to protect a witness from embarrassment or distress does not arise unless each of the three jurisdictional facts set out in s 13(1)(a)-(c) are satisfied. An application should be both plausible and reasonable, not based off a mere preference by a witness to give evidence in a particular way.[6]
[6] Question of Law Reserved (No 2 of 1997) (1998) 98 A Crim R 544, 547–548 (Doyle CJ).
The section is silent as to when such an application can or should be made. While s 13(1) appears to provide a benefit to a person who can satisfy the jurisdictional facts, consideration of the entire section, in particular s 13(7), demonstrates that the legislature has attempted to balance the competing interests of a witness and an accused. However, there is no reason to interpret s 13 as requiring that the application must always be made before a witness embarks on their evidence.
There are obvious reasons why that is so. A young witness, for example, may consider they can cope giving evidence in court only to become overwhelmed by the experience. There is no reason why a court should not then entertain an application under s 13. The fact that Mr Watts is mature is not to the point. While age and/or maturity may be a relevant factor to consider, they are not disqualifying factors. The relevant criterium to be satisfied is whether it is desirable to make special arrangements for taking evidence from a witness in a trial to protect that witness from embarrassment or distress, or to protect that witness from being intimidated by the atmosphere of the courtroom or for any other proper reason.
Subsection 13(1)(a)
Mr Watts gave evidence at the voir dire that prior to coming to court he had told the police and prosecution that he was scared of giving evidence. He had been told that they might be able to arrange for him to give evidence by CCTV. However, the police told him that it would be better if he gave evidence in the courtroom.
Mr Preston accepted that not pursuing a s 13 application on behalf of Mr Watts, before commencing his evidence, may have been an error of judgment. I do not think that concession was necessary. Clearly Mr Watts thought he could give evidence in front of the accused or he would not have attempted to do so. The preferable position for any witness is that they give evidence in court if they can. Applications under s 13 should not be made without there being a proper basis. Obviously Mr Preston did not foresee that Mr Watts would be overwhelmed so quickly.
However, even accepting that it may have been an error of judgment, there is no suggestion that the prosecution sought to obtain any advantage by having Mr Watts give evidence and then make a s 13 application. It is simply what occurred.
Mr Watts exhibited signs of fear, distress and anxiety in the witness box. Mr Watts, from his demeanour in court and his subsequent explanation, was a witness who was intimidated by the atmosphere of the court. He also appeared to be distressed. In those circumstances, I am satisfied that it is desirable to make special arrangements for him.
Subsection 13(1)(b)
There was little contention that the facilities necessary for the special arrangement were not readily available to the court. Mr Watts gave evidence at the voir dire by CCTV from an adjacent courtroom. He was not particularly close to the camera and counsel for the accused raised concerns about that and the ability of a jury to assess his demeanour in such circumstances. In my opinion, Mr Watts’s demeanour could be assessed during the voir dire. In any event, alternative and appropriate arrangements were made to ensure Mr Watts could be seen and his demeanour assessed at trial.
Subsection 13(1)(c)
It was submitted by Mr Henchliffe that where any prejudice of substance is suffered, the discretion to make the order would not be enlivened. Alternatively, he submitted that the prejudice suffered here was something over and above that which is necessarily inherent in the making of the order[7] and could not be cured with a direction. Mr Henchliffe submitted the accused would suffer prejudice because Mr Watts commenced his evidence in the courtroom but completed it by CCTV. It was the change in his mode of evidence, his demeanour in court and his evidence that he wished to withdraw his statement that caused the prejudice. Accordingly, the discretion to make the order, in those circumstances, is not enlivened.
[7] Question of Law Reserved (No 2 of 1997) (1998) 98 A Crim R 544, 548 (Doyle CJ).
Substantial changes were made to s 13 in 2008 by s 12 of the Statutes Amendment (Evidence and Procedure) Act 2008. In addition to changing the wording of s 13, the 2008 amendments created s 13A which dealt specifically with vulnerable witnesses, giving them greater protection. Prior to the amendments to s 13, the discretion was enlivened by words similar, but not the same as, those now found in s 13(1)(a) (formerly s 13(1)) and subject to s 13(1)(c) (formerly s 13(3)). The amendments clarify the operation of former s 13 in a permissive manner. It would be contrary to the purposes of the amendments to suggest that the latter version of s 13 has a more restrictive operation that the earlier version.
In R v Griffis,[8] Cox J determined that the former s 13 contemplated that a certain level of prejudice would be experienced when special arrangements were made under s 13 and such prejudice was overcome by issuing the relevant direction.[9]The issue with the current legislation is, as submitted by Mr Henchliffe, whether “without prejudice” takes on a wider meaning as a jurisdictional fact due to the changed nature of its relationship with s 13(7).
[8] (1996) 67 SASR 170.
[9] Ibid 178.
The presence of s 13(7) clearly contemplates that a certain form of prejudice will arise when exercising this power under the new section as with the old. That is, without such a direction, it is inevitable that the jury may draw inferences adverse to the accused or weigh the evidence of a witness in a particular way that would likely prejudice an accused. An obvious example of such prejudice is the likelihood that the jury may consider that a witness is in fear of an accused. If the presence of such prejudice was intended to defeat the power, s 13 would be without meaningful effect. If this is the case, discretion would not arise where any prejudice is suffered by a party.
As such, when read in light of the section as a whole, “without prejudice” should read in accordance with the understanding of the term in the prior format of s 13 as pertaining to prejudice “over and above what is necessarily inherent in the making of the order.”[10]
[10] R v Ivan Zoneff (No 2) [2000] SASC 70, 40 (Lander J).
The contention that the power does not arise at all where any identifiable prejudice might be suffered by a party must be rejected. Mr Henchliffe accepted that such an interpretation was open. However, he submitted that there was prejudice to the accused over and above the prejudice inherent in the order itself.
Do the current circumstances extend prejudice beyond what is contemplated by the Act?
What constitutes prejudice for the purposes of s 13(1)(c) is to be determined by considering the nature of the special arrangements, the charges against the accused and the likelihood of the jury impermissibly drawing any inference against the accused because of those special arrangements.[11]
[11] Ibid 44.
As discussed, the use of special arrangements may open the jury to inferences that the accused may have threatened the witness; that something about the witness’s evidence is more credible; or, that the witness is someone who ought not be in the presence of the accused.[12] In my view, these inferences are of the type that can be (and were intended to be) cured by a direction under s 13(7). That is, they do not go beyond the kind of prejudice contemplated by the Act.[13]
[12] Ibid 40.
[13] Ibid 45.
All counsel for the accused submit that the prejudice in this case went beyond what is contemplated by the Act due to the witness’s demeanour upon entering the box and then subsequent withdrawal and completion of evidence by CCTV. This, it was submitted, amplified any inferences that may be drawn beyond what is curable by a direction issued under s 13(7).
I reject that submission. The demeanour of a witness is a matter for the jury. The fact that Mr Watts may have demonstrated some degree of fear by his demeanour in front of the jury, before making his s 13 application, took the matter no further. It is a matter contemplated by the direction under s 13(7) and the direction to the jury is in very clear terms. The suggestion that Mr Watts wanted to withdraw his statement is of the same character. In the circumstances, I do not consider that there was any further prejudice outside of what is necessarily inherent in the making of such orders.
The prejudice suffered under the circumstances before me does not go beyond that which is contemplated by the Act. In my opinion, Parliament intended s 13 to apply to such circumstances. Although the circumstances may be slightly unusual, in that the application has been made after Mr Watts commenced giving evidence in the courtroom, Mr Watts’s fear of giving evidence falls squarely within Parliament’s contemplation. In my opinion, the accused suffer no additional prejudice by Mr Watts giving evidence by CCTV. The statutory direction as to witnesses whose evidence is taken by CCTV will cure any prejudice suffered by the accused.
I accept that, even if the jurisdictional facts are satisfied, the making of an order under s 13 is discretionary not mandatory. In the circumstances, I do not consider it would be unfair to the accused for Mr Watts to give evidence by means of CCTV. I consider, in the exercise of my discretion, that I should grant his application.
Accordingly, I grant the application and order special arrangements be made for Mr Watts to give evidence by CCTV. I will give the statutory direction as to witnesses whose evidence is taken by CCTV.
The accused also applied for a mistrial on the basis that the s 13 application should not be granted and that in all of the circumstances they are unable to obtain a fair trial.
I do not consider that the accused have suffered any prejudice that cannot be met by a direction under s 13(7). The application for a mistrial is dismissed.
Order
1. The application for special arrangements for the witness is granted.
2. The application for a mistrial is dismissed.
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