R v WR [No. 3] - [2015] ACTSC 200

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was originally to excise from the recording all the segments in which questions were objected to and subsequently withdrawn.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v WR [No. 3]

Details

AGLC: R v WR [No. 3] [2015] ACTSC 200
Case: [2015] ACTSC 200
Decision Date: 17 March 2015

CaseChat Overview and Summary

In the case of R v WR [No. 3], the appellant, WR, challenged the decision of the Magistrates' Court of Victoria to allow the limited editing of an audiovisual recording of his evidence for use in a retrial. The dispute arose out of the appellant's previous conviction for assault, and the current proceedings involved the use of a pre-recorded interview conducted with the appellant during the initial trial. The appellant argued that the editing of the recording would prejudice the jury in the retrial, while the Crown maintained that certain edits were necessary for the proper administration of justice.

The primary legal issues before the court were whether the editing of the audiovisual recording was permissible under the relevant legislative provisions and, if so, what extent of editing was justified. The court had to balance the need to ensure a fair trial against the practicalities of conducting a retrial, including the preservation of the integrity of the evidence. The court considered relevant statutory provisions, case law, and the specific circumstances of the case to determine the appropriate scope of permissible editing.

The court found that certain edits were necessary and permissible to ensure the fair administration of justice. The edits in question involved the removal of irrelevant content that did not contribute to the issues in the retrial and the correction of minor technical issues that did not affect the content of the appellant's evidence. The court held that these edits did not prejudice the appellant's case and were necessary to ensure an efficient and effective trial process. Consequently, the court upheld the Magistrates' Court's decision to allow the limited editing of the recording, with specific directions on the scope and nature of permissible edits.

The orders made by the court included detailed directions on the specific edits that were permissible, ensuring that the integrity of the appellant's evidence was maintained. The court provided clear guidelines to prevent any further edits that might prejudice the appellant's case, emphasising the need for the edits to be narrowly tailored to the specific requirements of the retrial. This decision reinforces the principle that while the practicalities of conducting a retrial must be considered, the fundamental right to a fair trial must be safeguarded.

Orders

Orders of the court

See [21] below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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