R v WR [No. 3]
[2015] ACTSC 200
•17 March 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v WR [No. 3] |
Citation: | [2015] ACTSC 200 |
Hearing Date: | 17 March 2015 |
DecisionDate: | 17 March 2015 |
ReasonsDate: | 4 August 2015 |
Before: | Penfold J |
Decision: | See [21] below. |
Category: | Procedural and other rulings |
Catchwords: | CRIMINAL LAW – EVIDENCE – Miscellaneous Matters – editing of audiovisual recording of evidence for use in re-trial or other proceedings – grounds for editing recording – orders made for limited editing of recording. |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 43A, 43A(4) |
Cases Cited: | R v WR [No. 2] [2015] ACTSC 199 |
Parties: | The Crown (Crown) WR (Accused) |
Representation: | Counsel Mr T Hickey (Crown) Mr K Archer (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 179 of 2013 |
Introduction
On 10 March 2015 the trial of WR on three charges of sexual offences against young girls began before a jury. On 16 March 2015 I discharged the jury as a result of evidence that had been given by the investigating police officer in the presence of the jury (R v WR [No. 2] [2015] ACTSC 199). A new jury was empanelled on 17 March, and immediately afterwards I began hearing two applications that had been foreshadowed by defence counsel immediately before the empanelment.
Defence counsel’s applications related to the recorded evidence of the two complainants which was, under s 43A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act), available to be shown to the jury as their evidence in the new trial.
One of those applications also related to evidence given by J, who is not a complainant and whose recorded evidence, if it was to be admitted, would be admitted by consent; however, I assumed that if I did not make an appropriate order in relation to J’s evidence then there would be no consent for the admission of that recorded evidence.
The first application was originally to excise from the recording questions asked of the complainants, and their answers, being questions about why after 11 years they had made formal complaints about the accused. There had been no application in the first trial for that evidence to be struck out, or for any more dramatic remedy for the putting of that evidence before the jury.
The second application was originally to excise from the recording all the segments in which questions were objected to and subsequently withdrawn.
The applications were made under s 43A(4) of the EMP Act.
The first application
The first application was originally based on the proposition that the reason why a complainant had finally made a formal complaint was irrelevant given that it had not been put to either complainant in cross-examination that her complaint had been delayed.
However, when counsel examined the evidence, there was only one question and answer objected to, and it emerged that the real objection to the answer was to that part of it in which the older complainant said that she had said to her mother, some years before making the formal complaint, “I felt so guilty that he was still out there hurting other children”.
This raised the same issue as the evidence that had led to the first trial being aborted (at [1] above), which was evidence implying that the accused had abused other children, or at least had been accused of other such abuse. The evidence that had led to the earlier trial being aborted had been given by the investigating police officer, who had, in response to a question by the prosecutor, given an answer to the effect that, following the complainant’s formal complaint to police, “others had come forward”.
I consider that such evidence from a police officer would be a more prejudicial suggestion of other accusations against the accused than was the complainant’s explanation for her wish, as a 14-year-old girl, to report the matter to police. The police officer’s comment would reasonably have been interpreted by a jury as reflecting a knowledge of other formal complaints, whereas the complainant’s statement, although framed as an assertion that other abuse had happened, need not have been assumed to indicate anything more than a concern that the accused might have been abusing other children.
That assessment may be supported by the fact that, as mentioned, there had been no concern raised about the complainant’s statement when it was first made before the jury.
However, it seemed to me that now that as a practical matter there was scope to remove the complainant’s statement before the evidence was put before another jury, that was desirable in the interests of the accused having a fair trial.
The prosecutor did not dispute this proposition.
The second application
The second application had originally been for an order that there be excised from the recording all the segments in which questions were objected to and subsequently withdrawn. A list identifying by transcript page the relevant segments of the recorded evidence was provided to me some 15 or 20 minutes after the end of submissions on the initial applications and at almost exactly the point when I was ready to give a decision on those applications. That list identified eight segments of evidence. For five of those segments, the application to exclude was not pressed, in several cases because the segments involved objections that were effectively overruled.
One of those five segments involved an exchange between me and a juror who was having a coughing fit. The proper approach to this segment did raise a fundamental question about the use of evidence recorded in a previous trial, namely, is there any requirement in the relevant legislation, or any policy reason, to hide from the new jury the fact that the evidence was originally taken before another jury?
It is clear that this will not always be possible. The availability of pre-trial hearings at which the evidence of complainants may be taken before a judge and recorded for playback at a trial before a jury means that juries will often see complainants’ evidence that has been recorded before the jury trial begins, possibly even evidence taken before a different judge or different counsel. In such a case it will be clear to the jury (even if they are not specifically told) that the evidence is not being given “live”.
Although in the abstract it may be preferable for a jury not to know that the matter has already gone to one or more trials that have not been satisfactorily completed, reading such a requirement into s 43A of the EMP Act would considerably reduce its utility, for instance, precluding the re-use of any recording in which counsel said anything along the lines of “can you explain to the jury...”, or even “I have copies of that exhibit for the jury”.
Accordingly, I see no reason to edit a recording simply to remove minor procedural or housekeeping material that need not be before the jury or the new jury.
After the application had been abandoned in relation to five segments of the evidence, the three segments remaining subject to the application were recordings of the following parts of the hearing:
(a)A defence objection to a preliminary Crown question made in a relatively common form (“Can you tell us why it is that you’re here to give evidence today?”) that might unintentionally have elicited an answer of the kind discussed at [8] to [9] above; the question was then rephrased.
(b)A discussion that began with a prosecution object to defence counsel’s reaction to what he presumably saw as a complainant’s non-responsive answer; counsel said “You’re speaking that mantra”. After a second try by defence counsel, which was answered in a similar way, I had directed the witness to listen carefully to the specific question asked by counsel and to answer it.
(c)A defence objection that resulted in the prosecutor withdrawing his question and indicating that the jury should disregard any answer given.
The prosecutor conceded that the last-mentioned segment had to be excised, and agreed that in the circumstances it was appropriate to excise the other two.
Orders
Accordingly, I ordered that the audiovisual recording be edited to excise the inadmissible material identified at [8] and [19] above.
However, this did not reflect a view that in cases of this kind, or for that matter in cases involving pre-trial hearings, it would routinely be appropriate to order the editing of pre-recorded evidence simply so that the evidence the jury heard was tidier than it was when it was originally taken. Nor did it reflect a view that once the opportunity arose as a practical matter, all material that was strictly inadmissible should be edited out of the audiovisual recording.
It seems to me that courts should be careful not to allow the increasing scope for editing evidence to detract from a relatively robust approach to what goes on in front of a jury; for instance, it would lead to enormous inefficiencies (without any increase in the quality of justice) if the ability to edit recorded evidence led indirectly to a view that even when evidence was being taken “live”, no objection could be discussed in the presence of the jury, however minor the objection or however obscurely it could be discussed with counsel.
Orders were made as follows:
(a)That the AV record of the evidence of E be edited to omit the following material (identified by reference to the “jury extract” transcript):
(i)Page 24, omit lines 24-32 (from “Can you tell us ...” to “Thank you Mr Hickey”).
(ii)Page 39, lines 17-18, “I had said to her that I felt so guilty that he was still out there hurting other children and I wasn’t doing anything to stop it.”
(b)That the AV record of the evidence of A be edited to omit the following material (identified by reference to the “jury extract” transcript):
(i)Page 124, line 29 to page 125, line 27 (from “You’re speaking ...” to “a specific question”).
(c)That the AV record of the evidence of J be edited to omit the following material (identified by reference to the “jury extract” transcript):
(i) Page 145, line 37 to page 146, line 30 (from “Just a moment, please” to “Thank you”).
| I certify that the preceding thirty-five [24] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Kate Harris Date: 31 July 2015 |
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