R v SH; R v Michael Vaughan; R v Kalonga Chifuntwe [No 1]
[2010] ACTSC 157
•23 November 2010
R v SH; R v MICHAEL VAUGHAN; R V KALONGA CHIFUNTWE [No 1]
[2010] ACTSC 157 (23 November 2010)
EVIDENCE – pre-trial hearing – section 40R Evidence (Miscellaneous Provisions) Act 1991 (ACT) – whether parents of accused may remain in the court during a pre-trial hearing – parents may remain.
Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 40R
Legislation Act 2001 (ACT)
Ex Tempore Judgment
No. SCC 2, 3 & 4 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 23 November 2010
IN THE SUPREME COURT OF THE )
) No. SCC 2, 3 & 4 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
v
SH; MICHAEL VAUGHAN; KALONGA CHIFUNTWE
ORDER
Judge: Refshauge J
Date: 23 November 2010
Place: Canberra
THE COURT ORDERS THAT:
The persons in addition to those listed in s 40R(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) that may be present in the court during the pre-trial hearing are my Associate, the Sheriff’s Officer assigned from time to time to the trial, any ACT Corrective Services officers assigned to the trial for the purposes of the trial and the parents of the accused, Michael Vaughan, and the mother of the accused, Kalonga Chifuntwe.
I have been asked to permit the parents of one of the accused and the mother of another of the accused to be present in the court during the pre‑trial hearing.
Section 40R of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) restricts the people who may be present in the courtroom at such a hearing. It lists some obvious persons including the presiding judicial officer, the prosecutor, the accused person and the accused’s persons lawyer. I assume “lawyer” would be interpreted in accordance with the Legislation Act 2001 (ACT) to include the plural if, as it appears here, the accused person is represented by counsel and also by instructing solicitor, to include all of those without necessary addition.
It then refers at paragraph (e), “Anyone else the court considers appropriate”. Having not referred to persons such as my Associate, the Sheriff’s Officer, ACT Corrective Services officers and the like, it appears that there will inevitably be people who will fall within that category. As presently advised, I am not satisfied that it is necessary for the court to add a list of inevitably present persons to justify a restrictive reading for that paragraph.
The Crown has argued that the persons allowed to be present should be limited because of the nature of the hearing and the list of persons expressly provided under s40R. It is under these circumstances that I am required to make a ruling. It is also noted that the evidence that will be taken at the pre‑trial hearing and recorded will have to be played at the trial and in the ordinary course the trial would be open and available for persons to come and to hear that evidence.
So there is not, in that sense, a need to proscribe the persons who have access to the evidence as it will be more widely available in due course.
Unfortunately, I have not had, this morning, the opportunity to look at the explanatory statement or the presentation speech and so it is not clear whether the legislature has provided in those extrinsic materials, with which the court can ordinarily have regard when making a decision about the meaning of the legislation, any guidance as to how the court should approach this issue.
In all the circumstances, I can see that people directly connected with the trial may be appropriate, such as, for example, a medical practitioner, or psychiatrist, or psychologist who may be required to give some advice about the way in which the complainant gives her evidence to assist the parties in determining how to proceed with the trial.
It seems to me, also, that it is not unreasonable for a support person to be here for the accused. The legislation provides for a support person to be available to assist and sit with the complainant when he or she is giving evidence and it seems not unreasonable for an accused person who, in one sense, has a more at stake and more at issue in a trial, to be supported in that way.
Accordingly, while I would not regard the paragraph as enabling a wide range of persons to be present, and almost certainly not parents of mature accused persons, but such persons as the spouse of an accused person or the parents of a younger accused person seem to me to be appropriate persons.
In all the circumstances, and accordingly, I will order that the persons in addition to those listed in s 40R(1) that may be present in the court are my Associate, the Sheriff’s Officer assigned from time to time to the trial, any ACT Corrective Services officers assigned to the trial for the purposes of the trial and in this case, the parents of the accused, Michael Vaughan, and the mother of the accused, Kalonga Chifuntwe.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 16 December 2010
Counsel for the Crown: Ms K Weston-Scheuber
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused, SH: Mr FJ Purnell SC
Solicitor for the accused, SH: Kamy Saeedi Lawyers
Counsel for accused, Michael Vaughan: Mr J Pappas
Solicitor for the accused, Michael Vaughan: Ben Aulich & Associates
Counsel for the accused, Kalonga Chifuntwe: Dr B Boss
Solicitor for the accused, Kalonga Chifuntwe: ACT Legal Aid Office
Date of hearing: 23 November 2010
Date of judgment: 23 November 2010
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