R v W.I.E.S No. Sccrm-00-155

[2000] SASC 249

R v W.I.E.S.
(Application for Reservation of Question of Law)
[2000] SASC 249

Court of Criminal Appeal:  Doyle CJ, Prior and Martin JJ (ex tempore)

1................ DOYLE CJ........ The Court is of the opinion that, subject to procedural matters, this is an appropriate case in which to require Judge Herriman to reserve for consideration and determination by the Full Court a relevant question under s 350 of the Criminal Law Consolidation Act 1935.

1. The Court is of that view for these reasons which I indicate in brief and, if necessary or appropriate, the Court will supplement these reasons by published reasons.

2. First, the matter with which Judge Herriman’s decision deals is of considerable practical importance in the criminal jurisdiction.

3. Second, it is arguable that his reasons indicate that his approach to the matter is wrong in law. The complaint does not merely relate to the balancing of matters to be considered under s 13 of the Evidence Act 1929.

4. Third, the decision is one which, if followed, could significantly restrict the use of s 13 of the Evidence Act.

5. Fourth, the proper use of s 13 of the Evidence Act is, as I have already said, a matter of practical importance.

6. Fifth, the decision appears likely to mean that the trial will not proceed.

7. There is, however, a procedural difficulty. The accused has been arraigned on an Information filed in the District Court but he has not been arraigned before Judge Herriman. However, when Judge Herriman made his rulings on 7 July and 10 July, he was the Judge before whom the accused was to be tried. But the accused was to be tried on a fresh Information filed in the District Court on which the accused had not been arraigned at all. Those circumstances give rise to a doubt about whether the order made was authorised by s 285A of the Criminal Law Consolidation Act. I deliberately say “doubt”; it is not necessary to be any more specific.

8. In this Court’s view, if the accused is arraigned before Judge Herriman on the fresh Information, pleads not guilty and, if on the renewal of the application under s 13 of the Evidence Act upon the same basis as before, Judge Herriman makes a fresh decision to the same effect as his expressed view and decision, this Court would order him to reserve for its consideration the following question: Did I properly exercise the discretion given to me by s 13(1) of the Evidence Act 1929, in refusing to order that the evidence of CLS, on the trial of the accused on the Information filed in this Court, be given outside the courtroom and transmitted to the courtroom by means of closed-circuit television?

9. It would expedite matters if Judge Herriman were himself to reserve that question for the Full Court’s consideration. And, in our view, it would be appropriate for him to do so, but we cannot require him to do so of his own initiative. However, if he declined to do so, we would require that a question be reserved in the terms indicated if the Director of Public Prosecutions so applied.

10. The function of this Court is to identify the question to be reserved. It is the function of the District Court judge then to state a case setting out the question reserved, the circumstances out of which the reservation arises, and any findings of fact necessary for the proper determination of the question reserved.

11. We consider that it should be possible for the parties to assist Judge Herriman so all of that can be done in time for the matter to be heard in the Court of Criminal Appeal in the week commencing 21 August, assuming that Judge Herriman is prepared himself to reserve the question. If he is not, then, of course, the Director may renew his application to this Court, although it will then of course relate to the more recent decision.

12. On that basis, at this stage, we propose to adjourn the application to await the outcome of further developments in the District Court.

13. I indicate for the benefit of the people in court, that publication of material that would or might identify the alleged victim, CLS, is contrary to law.