R v WS No. Sccrm-00-187

R v WS
[2000] SASC 294

Full Court: Prior, Duggan and Bleby JJ

1................ PRIOR J:....................... On 31 July 2000 a District Court judge refused an application made by the prosecution for an order pursuant to s 13 of the Evidence Act 1929 that the evidence of a witness be given outside the courtroom and transmitted to it by means of closed-circuit television. The judge confirmed an earlier indication before arraignment on the present Information that he would order a screen be placed to obscure the witness’ view of the accused and that she be accompanied by a relative or friend for the purpose of providing emotional support. His Honour also directed that “precautions be taken to ensure that (the witness) does not see the accused at any time, including upon entering or leaving the witness box”.

The witness is the daughter of the accused. The Information alleges three acts of cunnilingus were performed by the accused upon his daughter at their home between October 1991 and October 1992, during the first three months of 1998 and between May and July 1998. Another count in the Information alleges unlawful sexual intercourse by way of fellatio, also at the family home, between 1 January and 31 March 1998. The accused’s daughter was born on 16 March 1984. At the time the trial was due to commence she was aged 16.
The prosecution renewed its application to the trial judge after his first order when the witness said she would not give evidence if she had to give it in the courtroom. The prosecutor put to the trial judge that the daughter did not wish to give evidence in the same room as her father and that for her to do this would subject her to much “distress and trauma”. She had had no contact with her father for 14 months. The legislation now permitted young witnesses to give evidence without going through such trauma. In opposing any variation to the order already made the accused’s counsel put to the judge that the reason the girl did not wish to give evidence in the courtroom was that she did not wish to face her father “to whom she has lied”. When that submission was made the trial judge said that the girl was “not going to face him on my order anyway”.
The trial judge has now reserved for consideration of the Full Court two questions. They are:
“1..... In ruling on the prosecution application on 31 July 2000, did I properly exercise the discretion given to me by section 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?
2.If the answer to that question is no, having otherwise determined that it is practicable and desirable to make special arrangements for taking evidence from the complainant, am I empowered, under the said section 13, to order that, subject to appropriate security arrangements, the accused be removed from the courtroom whilst the complainant gives evidence at the trial, that the evidence given by her in the courtroom be transmitted to the accused by way of closed-circuit television and that the accused have, at all times, the means of communicating with his counsel?”
The District Court judge included within his identification of relevant findings of fact necessary for the proper determination of the questions reserved for the determination of the Full Court details of the daughter’s date of birth, the fact that she was one of two children born to the accused and his wife, the other being a male now approximately 19 years of age, and the fact that between 30 July 1998 and 23 March 1999, the daughter continued to reside at home with the accused, her mother and brother but that on, or about 23 March 1999, she complained of the accused’s alleged conduct and of sexual abuse allegedly perpetrated upon her by her mother and brother. Since that time she has been living away from home.
The trial judge says that after hearing counsel with respect to the applications, he found it practicable and desirable to make special arrangements in order to protect the witness from embarrassment or distress, “but not to the extent sought in the application”. He then made the order already referred to in lieu of an order that evidence be given outside the courtroom by means of closed circuit television. The District Court judge then reported:
“The reasons for these findings have been as follows:
8.1. I have not been satisfied that, in all the particular circumstances of this matter, an order that the complainant give evidence by closed-circuit television is an appropriate one because:
(i).... of the age and level of intelligence of the complainant, factors which I consider are relevant to her maturity and the level of embarrassment or distress likely to be suffered by her,
(ii)    of the recency of the last conduct complained of, which I note was in early to mid-1998, and the fact that the complainant lived in the company of her family, including the accused, her mother and brother, for eight to ten months after that date and prior to the time when she first made complaints against each of them;
(iii).. of the absence of any allegation that physical violence was perpetrated upon her by the accused in connection with the alleged conduct;
(iv)   notwithstanding that the complainant has lived away from the family home since March 1999, the fact that she has been in frequent contact with, and had support from, her mother and brother, being persons against whom she has also made allegations of sexual misconduct.
........ It has been put to me by the prosecution that the complainant has since withdrawn those allegations and the reasons given for her withdrawing them have been related to me as follows:
(1)... in relation to her mother, she has said: ‘I feel now that her behaviour that many years ago was not of a sexual nature and she had not displayed any sexual gratification at that time.’ At the time of the alleged conduct, the complainant was aged approximately nine;
(2)in relation to her brother, she now said: ‘He has not touched me for about seven years and at the time of the offence he was quite naïve and gullible.’ At the time of the alleged conduct, the complainant was aged about nine and her brother about 10.
I have not found those reasons to be persuasive, having regard to the ages of the complainant at the times of the alleged conduct, hence I have continued to have regard to her ongoing association with her mother and brother as a matter of some relevance on her application;
(v)     of the importance, in this particular case, of the jury having the opportunity to observe the complainant directly, rather than on a television screen. In this respect, I have considered that the complainant’s demeanour when giving evidence is of particular significance where:
(1)... as here, it is a case of oath against oath, there being no material corroboration of the complainant’s case;
(2)accused’s counsel wishes to place before her what he describes, and I accept, as a substantial number of documents in circumstances where, he contends, her visible reaction and immediate response to those documents is a matter of considerable importance in the presentation of his client’s case.
I am satisfied that the ability of the jury to properly observe her demeanour will, in the particular circumstances of this case, be inhibited if she gives her evidence via closed-circuit television;
8.2... that the making of the order sought would prejudice the accused in the proceedings. In this respect, I had particular regard to the matters set out in paragraph 8.1(v) above;
8.3that the making of such an order will have the effect, in this particular case, of preventing the jury from properly seeing and hearing the complainant while she gives evidence, for the reasons already expressed.”
The provisions of s 13 of the Evidence Act can be invoked in favour of any witness, but particular provisions apply to a witness defined as a vulnerable witness within s 13(10). A vulnerable witness includes a witness who is the alleged victim of a sexual offence to which the proceedings relate[1].
[1] Evidence Act 1929, s 13(10)(c)
Section 13(1) and s 13(2) of the Evidence Act provide:
“(1).. If it is practicable and desirable to make special arrangements for taking evidence from a witness in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of a courtroom, or for any other proper reason, the court should, subject to subsections (3) and (4), order that special arrangements be made for taking the evidence of that witness.
(2)The Court may, for example, make orders of the following kinds:
(a).... an order that the evidence be given outside the courtroom and transmitted to the courtroom by means of closed circuit television;
(b) an order that a screen partition or one-way glass be placed to obscure the witness’s view of a party to whom the evidence relates or some other person;
(c)... an order that the witness be accompanied by a relative or friend for the purpose of providing emotional support.”
Section 13(3) directs that an order is not to be made under this section, “if the order would prejudice any party to the proceedings”. Section 13(4) provides that an order must not be made if its effect would be, amongst other things, “to prevent the judge, or … the jury from seeing and hearing the witness while giving evidence”. Section 13(5) provides:
“If the effect of an order under subsection (1) would be to prevent the defendant in criminal proceedings from seeing and hearing a witness while giving evidence, the order may only be made if there is no other practicable way to protect the witness.”

Section 13(6) says that if a witness is accompanied by a relative or friend for the purpose of providing emotional support, that person must be visible to the parties, the judge and jury, “while the witness is giving evidence”. By s 13(7) Parliament has imposed a particular duty in the case of jury trials. The subsection states:

“If, on a trial by jury, 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.”

In Question of Law Reserved (No 2 of 1997)[2], this Court said that applications for special arrangements should be decided,
“by acting upon a plausible and reasonable request. The Court does not have to embark upon an enquiry and come to a conclusion on the balance of probabilities. It is sufficient that the request is plausible and reasonable. In an exceptional case, opposition to the making of an order might persuade the court that some further information or explanation should be provided. Opposition to the making of an order might persuade the court that it is not desirable to make the order. Everything would depend upon the circumstances. But the section is to be applied expeditiously, and without significant interruption to the flow of the case, and also without protracting the pre-trial procedures, should it arise at that stage. …
… when common sense suggests to the court that the application is plausibly made, while the court must hear any opposition, the order will usually be made without any further enquiry, unless the reasons for any opposition to the order cause the court to have some doubts.”

The Chief Justice then said, by way of an example, that it seemed to him appropriate to grant an application in a criminal case in which the accused is charged with a sexual offence and the victim expresses apprehension about giving evidence from a witness box close to the accused, and pointed out that it was not necessary for the court to seek material “to verify plausible applications”. His Honour said that where applications were both plausible and reasonable, subject to any specific matters raised in opposition, the court should grant the application without further enquiry. The Chief Justice said that in giving that opinion he was influenced by the clear statutory policy evinced by s 13 that an order should be made when it is desirable to do so[3].

[2] (1998) 196 LSJS 195

[3] (1998) 196 LSJS 195 at 199, 200

In the formal answer to the first question reserved in that case, the court said that a request for special arrangements for taking evidence from a vulnerable witness would be granted if, having regard to the circumstances under which the evidence will be given, the nature of the evidence, the reason for the request and any other matter that the court considers to be relevant, the court considers that the reason for the request is plausible and is a sufficient reason to make special arrangements. In dealing with a request for special arrangements for the taking of evidence the court will give due weight to Parliament’s statement that an order should be made when it is practicable and desirable to do so[4].
[4] (1998) 196 LSJS 195 at 201
The court also said that the prejudice referred to in s 13(3) relates to consequences over and above those which would necessarily result from the making of an order in any event. As for the provision in s 13(3), that an order is not to be made if the order would prejudice any party to the proceedings, the Chief Justice said[5]:
“That must mean, an order is not to be made if the making of the order would cause prejudice beyond that necessarily involved by making the order. Often the making of an order will cause no prejudice at all. The use of a one-way screen between the witness and the accused has little potential for prejudice to the accused, as long as the jury is appropriately warned not to draw any inference adverse to the accused: s 13(7).”
[5] (1998) 196 LSJS 195 at 200
His Honour then referred to what Cox J said in R v Griffis[6]. There, Cox J said that the policy behind s 13 was obvious, the special needs of witnesses requiring more consideration by the courts than they may, perhaps, have had in the past.
[6] (1996) 67 SASR 170 at 177
The Chief Justice then continued:
“I believe that as the use of screens and closed-circuit television becomes more common, some of the concerns expressed about these devices will disappear.
I add that it is difficult to identify circumstances in which there would be discernible prejudice to a party from the making of an order, over and above that necessarily inherent in the making of the order. But that does not mean that, in considering an application under s 13, the Court pays no attention to the impact upon the trial of the making of an order. The Court will do that as part and parcel of the process of considering whether it is desirable to make special arrangements.”
Against this authority, I think it is plain that the trial judge has erred. His order fails to protect the witness from embarrassment or distress. Indeed the reason given in (i) of 8.1 does not assert that as a result of the order the trial judge made and confirmed the witness would be protected from embarrassment or distress. His Honour simply asserted that the level of embarrassment or distress would be different. To properly refuse the request the trial judge would have had to say that the reason for the particular request was not plausible and not a sufficient reason to make special arrangements.[7] There was no proper basis upon which he could reject the reason given. It is not uncommon for witnesses in cases like this to have the concerns this witness claimed to have. A trial judge cannot regard it as anything other than plausible and sufficient without more than was before the trial judge in this case. The material before him did not entitle him to treat the application as anything other than a plausible and reasonable request.
[7] Question of Law Reserved (No 2 of 1997) (1998) 196 LSJS 195 at 201
Nothing put in opposition to the order sought identified prejudice to the defendant beyond that necessarily involved by making the order. Any reliance upon the ability of the jury to properly observe a witness’ demeanour being inhibited if that witness gave evidence by closed-circuit television is not a proper reason for refusing the particular order sought because it could not be discernible prejudice “over and above that necessarily inherent in the making of the order”[8].
[8] (1998) 196 LSJS 195 at 200
The transcript discloses that on 10 July His Honour referred to (c) of s 13(4) and indicated that he saw that provision as “including the qualifying words ‘properly’ or ‘adequately’” seeing and hearing witnesses, “because obviously, that is a factor that is called into question in such circumstances where closed circuit television is used, as opposed to the presence of a witness in court.” This statement is reflected in the language used by His Honour in (v) of 8.1 of his reasons. In 8.3 His Honour speaks of the order sought having the effect, “in this particular case, of preventing the jury from properly seeing and hearing the complainant while she gives evidence, for the reasons already expressed”. That reasoning and interpretation is erroneous. There is no warrant for adding to the plain language within (c) of (4) of s 13. That provision cannot prohibit the use of closed circuit television even if it be thought that that media is less satisfactory than having the witness in court in the witness box.
An order of the kind contemplated by s 13(2) cannot be refused on the ground that the demeanour of the witness may be open to a different degree of assessment by use of closed-circuit television, nor can such a view justify adding words to s 13(4).
In confirming his order after knowing of the girl’s attitude, the trial judge could be said to have prejudiced the prosecution rather than the defence. It is plain that one of the prime purposes in the enactment of s 13 is frustrated by the refusal of the order sought in this case. The legislation seeks to enable witnesses to give evidence by protecting them from embarrassment and distress. The effect of this ruling was to prevent the witness from being able to give evidence at all.
Inherent in the enactment of s 13 is recognition by Parliament that it is not uncommon for complainants in sexual cases to feel embarrassment and distress from having to be in the same room as the person they accuse and there give evidence. With that recognition comes an expectation that orders of the kind sought in this case will be common and made to protect such witnesses from embarrassment or distress. The age of the witness and his or her level of intelligence do not suggest that orders are unnecessary in such cases, nor can orders then be properly refused by reliance upon the fact that the prosecution’s case is dependent upon the evidence of the complainant alone or because it is a case of oath against oath. Likewise, it is incorrect to use as a reason for refusing any such order that the charges do not allege the perpetration of physical violence. In fact, physical violence is alleged in this case. Sexual assaults are crimes of violence even if no striking or hitting is involved.
The trial judge was not entitled to refuse the order sought on the material before him. He was not entitled to refuse the order by his assessment of a level of embarrassment or distress less than that asserted by the prosecutor on behalf of the witness absent some indication of good reason to simply reject that in the face of submissions and a relatively instinctive view of his own that fails to make sufficient allowance for the unassailable fact that genuine feelings like this are acknowledged and sought to be respected by this legislative provision.
I would therefore answer the first question, “No”.
As for the second question, it is plain that nothing in s 13 permits a trial judge to order an accused to be removed from the courtroom whilst a complainant gives evidence at the trial in the manner identified in the question. It was put in argument before this Court on an earlier occasion that it might be that, in a particular case, an accused person might wish to voluntarily absent himself or herself from a trial whilst a witness, who might otherwise obtain an order permitting the witness to give evidence on closed-circuit television, gave evidence in the witness box. It is neither necessary nor appropriate to deal with such a possibility in light of the issues as they have arisen before the trial judge.

The second question should be answered, “No”.

DUGGAN J: In my view both questions reserved by the learned trial judge should be answered “No”. I agree with the reasons of Prior J and I add these comments of my own.
The learned trial judge accepted that it was practicable and desirable to make special arrangements for the taking of the evidence of the complainant in order to protect her from embarrassment and distress when giving evidence. It was for this reason that he directed the use of a screen. The principal issue before this court is whether he exercised his discretion properly by refusing to permit the evidence to be given outside the courtroom but transmitted to the courtroom by means of closed circuit television.
Section 13(1) of the Evidence Act 1929 provides that the court should, subject to sub-sections (3) and (4), order that special arrangements be made for the taking of the evidence if it is practicable and reasonable in order to protect a witness from embarrassment or distress or from being intimidated by the atmosphere of the courtroom. It follows that any provision which is made in relation to the witness under s 13(2) should be designed to meet the concerns which justify the making of an order in the first place.
Section 13 was considered by the Full Court in Question of Law Reserved (No. 2 of 1997) (1998) 196 LSJS 195 at 199 and it is appropriate, for the purposes of the present discussion, to recall the following remarks of Doyle CJ:
“It follows that when common sense suggests to the court that the application is plausibly made, while the court must hear any opposition, the order will usually be made without any further enquiry, unless the reasons for any opposition to the order cause the court to have some doubts. For example, it seems to me appropriate to grant an application in a criminal case in which the accused is charged with a sexual offence, and the victim expresses apprehension about giving evidence from a witness box close to the accused or, in a case involving a young child who, the court is informed, will be intimidated by the courtroom and will be unable to give evidence adequately in the usual way. It is not necessary for the court to seek material to verify plausible applications such as these. There will be many cases in which, in the light of the nature of the case and the circumstances of the witness, the application will be both plausible and reasonable, and in such cases, subject to any specific matters raised in opposition, the court should grant the application without further enquiry.
In saying that I am influenced by the clear statutory policy evinced by section 13 that an order should be made when it is desirable to do so.”
The legislation is applicable to all jurisdictions, but its most frequent use is in cases where sexual offences are charged. It serves the purpose not only of protecting the witness from embarrassment, distress or intimidation, but it can have a consequential effect in increasing the quality of the evidence.
I return then to the question of the type of provision which should have been made in the present case bearing in mind the conclusion of the learned trial judge that it was practicable and desirable to make special arrangements for the complainant to protect her from embarrassment and distress.
Whereas the use of a screen may be effective in many cases, this device does not have the capacity to remove as many sources of stress as closed circuit television. This self-evident proposition has been referred to in studies on the operation of similar legislation. (See eg. The Receipt of Evidence by Queensland Courts: The Evidence of Children, Discussion Paper WP No. 53, Queensland Law Reform Commission December 1993 p 158).
In the present case there appears to have been a plausible and reasonable request not only for the making of an order under the section, but for that order to include a direction that closed circuit television be used and, in my view, these considerations were not outweighed by the matters referred to by the learned trial judge in paragraph 8.1 of the case stated.
It is appropriate to consider each of these matters in turn. In the light of the nature of the allegations, I do not think that the complainant’s present age of 19 years and her level of intelligence in some way reduce the potential level of embarrassment and likely distress which she would encounter by giving evidence in a courtroom.
The learned trial judge refers to the fact that the complainant continued to live with her family for eight to ten months after the last incident of which she complained. However it is difficult to draw any relevant inference from the fact that a person of her age at the time of the last alleged incident did not leave home earlier or that her present anxiety is in some way diminished by the continued presence of her father in the house during that time.
His Honour referred to the absence of any allegation of physical violence. However it is alleged that there was duress, compulsion and physical violation inflicted on her by her father when she was a child living at home.
With respect to his Honour, I am unable to agree that the complainant’s continued association with her mother and brother, despite allegations of misconduct made against them by her, have any relevance to her concerns in relation to giving evidence in the presence of her father.
I accept that the removal of the opportunity for the jury to observe the complainant in the courtroom is a relevant consideration, but the reference to closed circuit television in the legislation presupposes that some cases will justify the forfeiture of this suggested advantage. In any event, the advantage, if any, is one of degree; the demeanour of the witness may nevertheless be observed through the medium of closed circuit television.
Finally, I am of the view that Mr Caldicott, for the respondent, was unable to justify the argument which he put to the learned trial judge that the use of television would be a particular impediment to the jury’s observation of the complainant’s reaction and response to various documents it is proposed to put to her in the course of cross-examination at the trial.
It is my view that the particular anxieties which were expressed on behalf of the complainant concerning the prospect of giving evidence in the courtroom and which were accepted as genuine, justified the making of an order requiring the use of closed circuit television and the reasons advanced to the contrary were quite insufficient to displace such a conclusion. I acknowledge that the court should be slow to interfere with the exercise of a trial judge’s discretion in a matter such as this, but, as the court has been asked to express its view, I must say that in my opinion the discretion has not been properly exercised.
I do not wish to add anything to the reasons given by Prior J in answering the second question.

BLEBY J:I agree that both questions should be answered “No”. I agree with the reasons expressed by both Prior J and Duggan J. I merely add comments of my own on three particular matters.
The first is that the primary object of the inquiry into whether it is desirable to make special arrangements is, according to s 13(1) of the Evidence Act, whether there is a need to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of a courtroom or whether there is some other reason which makes it desirable to make the special arrangements. Items (i) to (iv) of Paragraph 8.1 of the trial Judge’s findings are matters relevant to that question. They were some of the matters which justified his Honour’s conclusion that it was desirable to make special arrangements.
His Honour was satisfied that it was also practicable to make special arrangements. That was no doubt because the trial could be conducted in a court where arrangements of the type under consideration could physically be made.
Having reached the conclusion that it was both desirable and practicable to make special arrangements, his Honour had to consider the nature of the special arrangements that should be ordered. The nature of those arrangements will necessarily depend on the nature and extent of the concerns which justify the making of the order. That will in turn depend, to a significant degree, on the likely degree of embarrassment or distress and the likely extent of the need to protect the witness from being intimidated. To that extent some of the factors listed in Paragraphs (i) to (iv) continued to be of some relevance. Some did not. Duggan J has mentioned those which did not.
There seems to have been no attempt by the trial Judge to assess the extent of the likely embarrassment or distress or the extent of the need for protection from intimidation. That really required in this case some assessment of the present attitude of the witness to the source of the embarrassment, distress or intimidation. A clear indicator of that attitude was the refusal of the witness to give evidence at all in the physical presence of the accused - a factor apparently not taken into account by the trial Judge in declining to order that the evidence be given by closed circuit television. Having said that, I should make it clear that a refusal to give evidence in the presence of the source of the embarrassment, distress or intimidation is not the only justification for the use of closed circuit television. The extent of the embarrassment, etc, should have been apparent, upon proper inquiry, without the witness having to resort to a refusal to give evidence.
The second point I wish to make is that the trial Judge erred in holding that there was an absence of any allegation of physical violence perpetrated by the accused. The very essence of the alleged offences was a physical violation of the witness. It was an allegation of an uninvited and unwanted assault on her at a time of her life when she was most vulnerable to abuse. The suggestion that conduct such as that alleged in this case does not constitute physical violence against such a person can no longer be tolerated. I accept that the trial Judge probably intended to convey an absence of any allegation of the application of force such as to cause immediate physical harm or physical distress to the witness, or an absence of any threat of any such force. If that was his Honour’s intention, it was an unfortunate choice of language. Furthermore, if that was his intention, that fact bore little or no relevance to the type of arrangements that should be made.
Thirdly, Parliament has recognised that there may be advantages and disadvantages to one party or another in the use of the special arrangements contemplated by s 13. It has said that whatever the advantages or disadvantages inherent in the arrangements themselves may be, the Court should nevertheless make such arrangements, subject only to subsections (3) and (4) of the section. The prejudice referred to in subsection (3) must be prejudice beyond the prejudice (if any) inherent in the use (in this case) of the closed circuit television.
Furthermore, it cannot be assumed that the use of closed circuit television is necessarily disadvantageous to the accused in any event. Much will depend on the size and disposition of the courtroom, the position of the television camera and position of the television screens in the courtroom and other factors. In some circumstances the jury may have a much better view of the witness and of the witness’s body language than if the witness were giving evidence in court. But even if there were some supposed prejudice to the accused inherent in the use of the television, there is nothing in the circumstances of this case to suggest that there was any additional prejudice such as to attract the operation of subsection (3).

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

Evidence Act 1929, s 13(10)(c)
(1998) 196 LSJS 195
(1998) 196 LSJS 195 at 199, 200
(1998) 196 LSJS 195 at 201
(1998) 196 LSJS 195 at 200
(1996) 67 SASR 170 at 177
Question of Law Reserved (No 2 of 1997) (1998) 196 LSJS 195 at 201

[2000] SASC 294

13 September 2000