Complaints Assessment Committee 403 v Brown
[2016] NZHC 2101
•6 September 2016
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF THE RESPONDENT/WITNESS UNTIL THE FURTHER ORDER OF THE COURT. IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-409-000666
[2016] NZHC 2101
BETWEEN COMPLAINTS ASSESSMENT COMMITTEE 403
AppellantAND
ARTHUR BROWN
Respondent
Hearing: 29 August 2016 Appearances:
R E Savage for the Appellant
No appearance for the Respondent
Judgment:
6 September 2016
JUDGMENT OF NATION J
[1] On 25 November 2015, the respondent1 was charged by the Complaints Assessment Committee 403 (the Committee) with misconduct under s 73(a) of the Real Estate Agents Act 2008 (the Act). The particulars of the charge are that between August and December 2014 the respondent sexually harassed and/or bullied a colleague (the witness). It is alleged that the harassment/bullying consisted of offensive personal comments, unwelcome sexual jokes and/or sexual or offensive gestures and behaviour. At the relevant time, the witness and the respondent were both employed by a particular real estate agency (the Agency), the respondent as a licensed
1 Because of the interim suppression order, the respondent’s name has been anonymised.
COMPLAINTS ASSESSMENT COMMITTEE 403 v BROWN [2016] NZHC 2101 [6 September 2016]
sales person and the witness as a sales associate. The witness also acted as the respondent’s executive assistant.
[2] The complaint which is the subject of the charge was made by the owner of the Agency. It is set down for hearing on 28 and 29 September 2016 in Christchurch.
[3] The witness filed a complaint with the Human Rights Commission (HRC) concerning the respondent’s conduct. An HRC mediator conducted a mediation conference which resulted in a confidential settlement being reached between the witness and the respondent.
[4] The respondent made an application to the Real Estate Agents Disciplinary Tribunal (the Tribunal) for a direction that confidentiality be lifted and details be disclosed of the settlement agreements reached:
(a) in the HRC between the witness and himself; and
(b) privately between the witness and the Agency.
[5] The witness did not consent to the disclosure of any details of the settlement reached either in the HRC or with the Agency.
[6] In a decision of 25 July 2016, the Tribunal ruled that there should not be disclosure of the settlement agreements.2 There is no appeal from that aspect of the Tribunal’s decision.
[7] The Committee also sought a direction that the witness give her evidence from behind a one-way glass or mirror or, if that is not available, by closed circuit television so that she does not have to give her evidence in view of the respondent. The Tribunal concluded that, in this particular case, it was not appropriate to make that direction. This is an appeal from that decision.
2 Complaints Assessment Committee (CAC 403) v [Brown] [2016] NZREADT 50.
The Tribunal’s decision
[8] In its ruling, the Tribunal referred to the submissions made by counsel for both the Committee and the respondent. The Tribunal noted that the submissions for the Committee were directed at specific grounds, set out in s 103 of the Evidence Act 2006, for making such a direction:3
· s 103(3)(c): “the trauma suffered by the witness”;
· s 103(3)(d): “the witness’s fear of intimidation”;
· s 103(3)(f): “the nature of the proceeding”; and
· s 103(3)(g): “the nature of the evidence that the witness is expected to give”.
[9] The Tribunal noted that, in his response to the charge laid against him, the respondent has accepted he had made inappropriate and unacceptable comments to the witness, denied that he had ever harassed her sexually or otherwise but accepted, given his understanding of the impact his comments had on someone who was an employee, that his conduct could be construed as bullying. He argued that his conduct could not be construed as misconduct because it was not serious enough to be considered as disgraceful, did not impact on his fitness or propriety to carry out real estate work and was essentially a private matter between the witness and him, in respect of which issues had been fully and finally resolved by way of a confidential settlement agreement. In an affidavit in support of an application for a non-publication order, he also said that he had considered, despite the difference in their employment situations, they were close in age and he believed behaved more like friends than as an employer/employee. He claimed his comments were meant as a joke, they were not one-sided and he never intended to be cruel or offensive.
[10]In its decision, the Tribunal said:
[37] In the circumstances, and bearing in mind the nature of the proceeding and the nature of the evidence she is expected to give, the Tribunal accepts that [the witness’s] evidence and cross-examination may well encompass
3 At [30], citing s 103(3) of the Evidence Act 2006.
material, such as the extent and precise nature of [the respondent’s] conduct, and her own feelings about herself, which may cause her distress and embarrassment, and to fear intimidation by [the respondent].
[11]The Tribunal nevertheless went on to say:
[38] However, it needs to be borne in mind that a hearing before the Tribunal is different from the hearing of criminal charges in a trial in the District or High Courts. In a criminal trial, the accused person is present in the courtroom during the trial (customarily in the dock) and is likely to be opposite, or reasonably close to, witnesses giving evidence. Cases where directions are made for evidence to be given from behind a screen are the exception rather than the rule. In a disciplinary hearing before the Tribunal, the defendant will be seated at the rear of the courtroom, so the proximity of a criminal trial is absent.
[39] Further, [the witness] is a witness for the Committee. She will be absent from the courtroom except when she is giving evidence. She will not be present when [the respondent] gives his evidence and is cross-examined. This will serve to lessen the stress, embarrassment and fear of intimidation that [the witness] may fear.
[40] Finally, it is not [the respondent] who will be questioning [the witness]. Her evidence in chief will be led by counsel for the prosecutor, and is likely to be by way of confirming a statement of her evidence and any necessary supplementary questions. Any cross-examination will be by [the respondent’s] counsel. [The witness] will not be required to be face to face to [the respondent] at this time.
[41] Finally, the Tribunal has the power to make directions as to nature of the cross-examination during the hearing, if such directions are sought.
[12] The respondent’s counsel filed a memorandum indicating she did not wish to be heard on the appeal. In that memorandum, counsel however pointed out that this appeal was against the exercise of a discretion. Ms Pender said that the respondent’s position, with regard to the application, was reflected in the Tribunal’s ruling.
[13] In its ruling, the Tribunal referred to Ms Pender’s submission that the witness’s assertions as to having been traumatised by the respondent’s conduct, and that the respondent continues to intimidate her, were not particularised in the charge and were not supported by any specific evidence.4
[14] Ms Pender had referred the Tribunal to the judgment in R v GJ in which Katz J described the two broad categories of witnesses most likely to meet the grounds in s
4 Complaints Assessment Committee (CAC 403) v [Brown], above n 2, at [26].
103(3) as being “those whose personal characteristics or circumstances may give rise to particular challenges for them in giving evidence in the ordinary way” and “those who may face particular challenges in giving evidence in the ordinary way due to the nature of the alleged offending against them or their relationship with the alleged offender”.5
[15] Ms Pender had also submitted that the stress of cross-examination is not, in and of itself, a reason for making a direction that evidence is to be given in an alternative way.6 Ms Pender had referred to affidavits sworn by the respondent and the employment advocate who represented him at the HRC mediation. She had submitted that the order would cause the respondent unfair prejudice in that allowing the witness to give evidence from behind a screen risked creating the misleading impression that she is more vulnerable than she really is or that the allegations against the respondent are more serious than they really are. She submitted that, if a screen were to be permitted, then fairness required that the respondent be able to see and hear her, by way of a one-way glass or mirror.
Discussion
[16]Section 105 of the Real Estate Agents Act 2008 provides:
105 Proceeding before Tribunal
(1) The Tribunal may regulate its procedures as it thinks fit.
(2) Subsection (1) is subject to the rules of natural justice and to this Act and any regulations made under this Act.
[17] The Tribunal’s decision not to permit the witness to give evidence in an alternative way involved the exercise of a discretion. To succeed on this appeal, the Committee must satisfy me that, in its decision, the Tribunal:7
· made an error of law or principle;
· took account of irrelevant considerations;
5 R v GJ [2014] NZHC 2276 at [8].
6 Complaints Assessment Committee (CAC 403) v [Brown], above n 2, at [27], citing R v O [2012] NZCA 475.
7 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
· failed to take account of a relevant consideration; or
· was plainly wrong.
[18] For the Committee, Ms Savage submitted the Tribunal erred in law in declining the application after concluding that, given the nature of her evidence and her own feelings about herself, giving evidence and being subjected to cross-examination might well cause the witness to feel distress and embarrassment and to fear intimidation.
[19] Ms Savage also submitted the Tribunal took into account an irrelevant consideration in that the Tribunal’s rationale for its decision involved a flawed analysis of the differences between a disciplinary hearing and criminal trial.
[20] I accept the Tribunal’s decision did involve a flawed analysis of the difference between disciplinary hearings and criminal trials.
[21] The Tribunal said that in a criminal trial the accused person is present in the courtroom during the trial (customarily in the dock) and is likely to be opposite or reasonably close to witnesses giving evidence.8 The Tribunal said that, in a disciplinary hearing before the Tribunal, the respondent will be seated at the rear of the courtroom, so the proximity of a criminal trial is absent.
[22] I do not accept that the Tribunal could proceed on the basis there would necessarily be such a distinction or that, if there was, it would be relevant. Just where a witness might physically be giving evidence and where a defendant might be sitting, both in a hearing before the Tribunal and in a criminal trial, may well depend on the configuration of the court in which a criminal trial is taking place or the room in which the Tribunal is sitting. Commonly, defendants in a criminal trial are not in the dock as a witness is giving evidence but are seated behind counsel in the direct line of sight of a witness. Furthermore, the proximity of a defendant to a witness is not necessarily a relevant factor in deciding whether or not it is appropriate for a witness to be able to give evidence without having a defendant in their view. What is significant is that,
8 Complaints Assessment Committee (CAC 403) v [Brown], above n 2, at [38].
without a direction permitting his or her evidence to be given in an alternative way, the witness will be giving evidence conscious that the defendant about whom they are giving evidence is observing them as they do so.
[23] The Tribunal also said in its decision that cases where directions are made for evidence to be given from behind a screen are the exception rather than the rule. I accept that is the case considering witnesses generally but it is no longer true of complainants giving evidence in criminal trials, particularly of alleged sexual offending. In Wealleans v R the Court of Appeal approved of Mander J’s statement from the High Court that:9
The alternative ways of giving evidence provided for in the Evidence Act 2006 are now well entrenched and reflect an acceptance that technological advancements should not be ignored where they can aid the trial’s “truth- funding process” by lessening the stress on witnesses required to give evidence about particularly difficult and sensitive matters.
[24] Ms Savage submitted the Tribunal had also erred in attaching significance to the fact the witness would be appearing as a witness for the Committee and would not be involved in the hearing beyond giving evidence, and would be cross-examined by the respondent’s counsel rather than the respondent personally, so she would not be required to be “face to face to [the respondent] at that time”.
[25] The Tribunal did refer to such matters but did not say that such factors would differentiate her involvement from that of a complainant in a criminal trial. Had it done so, it would have been in error. Witnesses in a criminal trial who are allowed to give evidence in an “alternative way” do not normally have any involvement in the trial beyond giving evidence. Victims of certain crimes can be questioned only by counsel and not by the defendant personally but most witnesses in all trials are cross- examined by counsel, not by defendants personally.10
[26] I do not read the Tribunal’s decision and its reference to these factors as being reasons to differentiate the giving of evidence before the Tribunal from giving evidence in a criminal trial. Rather, they were mentioned as factors which the Tribunal
9 Wealleans v R [2015] NZCA 353 at [16] and [30], citing R v Wealleans [2015] NZHC 1992 at [22] [pre-trial ruling]. I refer also to the Court of Appeal’s judgment in R v O, above n 6, at [37].
10 Evidence Act 2006, s 95(1). There is scope for further, judicially ordered restrictions in s 95(2).
took into account in assessing the stress the witness would face in giving evidence without a screen or in some other “alternative way”.
[27] In reaching its decision, the Tribunal also noted that it had the power to make directions as to the nature of the cross-examination during the hearing if such directions were sought.
[28] I consider it was appropriate for the Tribunal to note the way and extent to which the witness would be involved in the hearing and the way in which she would be questioned in assessing the degree of stress or intimidation that she might fear in having to give evidence in the normal way. In doing so, I also consider it was appropriate for the Tribunal to have regard to the information which was before it and the involvement of counsel.
[29] I have however found there was an error in the Tribunal’s rationale for its decision. It is therefore appropriate that I consider afresh whether the ultimate decision reached by the Tribunal was wrong.
[30]Section 109 of the Act provides:
109 Evidence
(1) Subject to section 105, the Disciplinary Tribunal may receive as evidence any statement, document, information, or matter that may, in its opinion, assist it to deal effectively with the matters before it, whether or not that statement, document, information, or matter would be admissible in a court of law.
…
(4) Subject to subsections (1) to (3), the Evidence Act 2006 applies to the Disciplinary Tribunal in the same manner as if the Disciplinary Tribunal were a court within the meaning of that Act.
[31] I accept, as submitted by Ms Savage, that it was appropriate for the Tribunal to have regard to ss 103 and 105 of the Evidence Act.
[32] In R v O, the Court of Appeal overturned a ruling by a High Court Judge refusing to allow an adult complainant, who alleged he was the victim of indecent assault, sexual violation and attempted sexual violation when he was 18, to give his
evidence in chief through the playing of a video interview.11 Harrison J, for the Court of Appeal, stated:
Section 103 allows a broad fact-specific enquiry. It appears to signal a distinctive shift in legislative policy to extend the scope for the mode of giving evidence by alternative means beyond the previous limitations to young and mentally impaired complainants in sexual cases. The provision vests a broad and unfettered discretion in the trial Judge once the jurisdiction to make an order is established. As this Court has previously observed, there is now no default position or presumption in favour of giving evidence in the ordinary way.12
[33] Those observations have been made in the context of a criminal trial where, using Mander J’s words, a witness is required to give evidence “about particularly difficult and sensitive matters”.13
[34] Section 103(1) still expressly recognises that “the ordinary way” is for a witness to give evidence in a courtroom, able to see and in view of a defendant. Hence, s 105 states that the “alternative way” for a witness to give evidence may include the particular modes of evidence referred to in s 105(1)(a)(i), (ii) and (iii).
[35]The authors of Cross on Evidence noted:14
Mode of evidence applications are most common in criminal, and in particular sexual, cases. Unsurprisingly, despite the absence of any hierarchy among the s 103(3) factors, the dominant considerations in this context tend to be complainant or witness-centred. By contrast, mode of evidence applications in civil proceedings are far rarer, and arise almost exclusively in relation to overseas witnesses.
[36] Even in criminal proceedings, where the Courts have held it is appropriate for a witness to be able to give evidence in an alternative way, the usual course is that the defendant should still be able to see and hear the witness giving evidence, thus with a screen, through use of one-way glass or mirrored screens.15 I note, however, the Court
11 R v O, above n 6.
12 V (CA 492/2010) v R [2011] NZCA 525 at [21], citing R v Shore [2008] NZCA 313 at [28].
13 R v Wealleans [pre-trial ruling], above n 9, at [22].
14 Donald Mathieson (ed) Cross on Evidence (online looseleaf ed, LexisNexis) at [EVA103.4] (citations omitted).
15 Pearce v R [2012] NZCA 596 at [40].
of Appeal has held that it is not essential to fair trial requirements that a witness should have to give evidence in the ordinary way in the presence of a defendant.16
[37] The witness swore an affidavit in support of the Committee’s application. In that affidavit she said she wished to give evidence from behind a screen. She said her reasons for this were that:
(a) she had been “particularly traumatised and suffered emotional distress” as a result of the respondent’s conduct;
(b) she continues to feel intimidated by the respondent;
(c) she participated in a mediation with the respondent and was uncomfortable with the fact that she was left alone with the respondent; and
(d) not having to face the respondent would minimise any unnecessary stress on her and it would make it easier for her to give her evidence about the events in question.
[38] She said, contrary to assurances, she had not been kept safe through the mediation process. She had been left alone with the respondent, had been left feeling vulnerable and manipulated, and felt let down by the particular mediator and mediation process.
[39] In relation to that ground, an affidavit was provided to the Tribunal from the advocate who had represented the respondent in the mediation. In that affidavit, he took exception to the way the witness criticised what happened in mediation, when this had happened with the agreement of the witness and her counsel, the mediator had been available to the witness if needed, the witness had been able to discuss matters directly with the respondent in a way that resulted in them reaching an agreement and that agreement was not confirmed until after the parties had discussed it with their representatives and the mediator. The HRC had also advised the Tribunal that it would want to consider its position if there was going to be criticism of the mediator.
16 Wealleans v R, above n 9, at [45], citing R v GJ, above n 5, at [36]. See also R v M [2009] NZCA 555 at [38] and Mussa v R [2010] NZCA 123 at [48].
[40] In light of the controversy of how the witness came to be alone with the respondent during the mediation, Ms Savage submitted that what happened during the mediation was relevant only insofar as it meant there was evidence that the witness had found it upsetting being face to face with the respondent in the mediation setting. In that regard, it is significant that she has said that she was uncomfortable with the fact that she was left alone with the respondent. She will not be left alone with the respondent in giving evidence before the Tribunal.
[41] The Tribunal also had a brief letter from the witness’s counsellor. In that letter, he said:
In my capacity as [the witness’s counsellor], I am acutely aware of the emotional distress she has already been through in relation to this matter. Given the way in which a previous experience of a mediated encounter with [the respondent] was mishandled to her detriment, I believe [the witness] is fully justified in seeking to make any further meetings with him as safe for herself as possible.
In order to minimise any unnecessary stress on [the witness] as a witness, out of respect for her wishes and in order to promote her ongoing recovery, I wholeheartedly support her application that her evidence at any hearing at which [the respondent] is present be given from behind a screen.
[42] Neither the Tribunal nor I had to proceed on the basis that her involvement in the mediation was mishandled. Given the composition of the Tribunal and given it is likely the chairperson of the Tribunal will be a former Judge of the High Court, it is appropriate for a decision to be made about the way in which the witness gives her evidence on the basis that the Tribunal will control the proceedings in a way which is fair to all parties. The letter from her counsellor provides no detailed information or particulars as to why there should be any particular stress or fear of intimidation for the witness in giving evidence other than might normally be expected of a witness who is having to give information about conduct towards her which she did not like. The letter is little more than an understandable letter of support from a counsellor for his client. In deciding whether or not to direct evidence to be given in an alternative way, the requirement in s 103(4)(b)(ii) for the Court to have regard to the promotion of the witness’s ongoing recovery, is expressly in relation to a witness’s involvement in criminal proceedings.
[43] The Tribunal had suggested the witness would be giving evidence of what she considers were offensive personal comments, unwelcome sexual jokes and/or sexual or offensive gestures and behaviour towards her. This conduct is alleged to have occurred between August and December 2014. The respondent has accepted responsibility for inappropriate workplace conduct which impacted on the witness and said that he is sorry for anything he did which offended her or hurt her feelings. He said he never intended to be cruel or offensive and that he is deeply embarrassed now that he looks back at how he acted. He says he has paid her $14,800 to put things right between them and as a way of accepting responsibility for some offensive comments which had distressed her. With that being his position, it is unlikely that, in relation to the conduct which the witness will be describing, she will face the ordeal of it being suggested through cross-examination that she has made things up. Given the respondent’s apology and the settlements he has come to, it is unlikely that the respondent’s counsel is going to cross-examine the complainant in a way which is aggressive and detracts from the fairness of the proceeding or aggravates the stress on the witness.
[44] The information before the Tribunal and before me is that the complainant and respondent were of similar ages. The respondent is aged 24. The witness is some years younger than that and is currently attending a course of tertiary education. The period during which they were working together in the same agency was only some four months. They both participated in a mediation some 12 months after the respondent last had any dealings with the witness. There is no suggestion that they have a continuing relationship or that, as can occur when there is alleged criminal offending within a family setting or where a defendant was in a position of authority over a complainant, there could be divided loyalties and/or conflicting feelings which would make it more difficult for a witness to give truthful evidence as to a defendant’s conduct towards her.
[45] Although the witness will be giving evidence of statements which were made to her, which she found to be distasteful and which she may not like repeating, and although she will undoubtedly be questioned as to the context in which those remarks were made, her evidence is not likely to be about grossly intrusive physical acts or
conversations which occurred in an intensely personal or intimate situation which she could reasonably be expected to find it difficult to give evidence about.
[46] The witness has demonstrated that, since the termination of the respondent’s employment with the Agency, she has been able to act assertively in relation to the conduct which she complains of. In January 2016, she had solicitors write to solicitors for the Agency with regard to a proposed “record of settlement” which the agency had made to her. Her solicitors wrote:
We have spent some time with her and consider that the settlement is inadequate and does not go nearly far enough to prevent a repetition of the behaviours she was subjected to in an unsafe work environment.
We would like to enter into discussions towards a more fruitful, and we submit, advantageous settlement for both parties.
We are unsure if you are aware of the background to the issue. Our client was subjected to continual sexual harassment. The employer was aware of it and took insufficient steps to protect her from it. Obviously, the compensatory sum proposed by your client is totally inadequate in light of the authorities on this type of behaviour.
More importantly, our client wishes to have steps taken to prevent the perpetrator from getting away with his behaviour and to this end appropriate measures need to be incorporated into the settlement.
[47] As well as making a claim against the Agency that employed her, the witness made a complaint to the HRC and participated in a mediation with the respondent where, with the assistance of counsel, they did meet with each other. Whatever misgivings she may have had about it afterwards, with the concurrence of an experienced mediator and her counsel, she did meet face to face with the respondent without other people present and was able to settle issues between the two of them by agreement.
[48] The evidence before the Tribunal is that two settlement agreements have been entered into: the first between the respondent and the witness, and the second between the witness and the Agency. Despite this, the witness is giving evidence in support of the charge. There was no suggestion in the information before the Tribunal that she is a reluctant witness or does not wish to be involved in the proceedings. The hearing will be an ordeal for the respondent as it will be for the witness.
[49] Although s 109 of the Act, in conjunction with s 103 of the Evidence Act, permits the Tribunal to direct that evidence be given in an alternative way, there are a number of provisions in s 103 which suggests the legislature would not have contemplated that the section would be readily used in proceedings before a disciplinary body concerned with allegations of the sort that have been made here. The matters referred to in ss 103(3)(a)-(g) and 103(4)(b)(ii) are all indicative of the fact that the legislation is designed primarily to make it easier for witnesses to give evidence of serious and deeply personal criminal conduct usually, but not necessarily, in the context of criminal proceedings. The conduct the witness complains of here is not of that sort.
[50] I have had regard to the views of the witness and the need to minimise the stress on the witness.17 I have also had regard to the need to ensure the fairness of the proceeding before the Tribunal.18
[51] The respondent is having to acknowledge before the Tribunal conduct which he has had to apologise for; his explanations for that conduct will be the subject of cross-examination and scrutiny by others. Those others may well include the owner of the Agency who made the complaint which led to the charge he faces. Any stress or embarrassment for him in having to do this will not be reduced through a screen separating him from others who may attend the hearing. The charge against him is based on the evidence which the witness intends to give.
[52] In giving the evidence in the ordinary way, the witness is likely to have the respondent within her view but she will be answering questions asked of her directly by counsel for the Committee, counsel for the respondent or members of the Tribunal. Through concentrating on those questions and directly engaging with them, there is every prospect that she will find the presence of the respondent in the same room and potentially within her view is significantly less intrusive than she may currently be anticipating. The Tribunal noted that the witness’s evidence in chief was likely to be by way of confirming a statement of her evidence and answering any necessary
17 Evidence Act 2006, s 103(4)(a).
18 Section 103(4)(b).
supplementary questions.19 That would recognise the public interest in ensuring the witness is not inhibited from giving full relevant evidence as to what may have happened to her.
[53] One of the purposes of the Evidence Act is to promote fairness to parties and witnesses.20 In the particular circumstances of this case, I consider that it will be fair to both the respondent and the witness if she has to give her evidence in the ordinary way, in the same way the respondent will have to give his evidence.
[54] For these reasons, I do not consider the ultimate decision which the Tribunal came to, in declining to direct the witness may give evidence at the hearing in an alternative way, was wrong.
[55]The appeal is dismissed.
[56] The Disciplinary Tribunal, pursuant to a ruling of April 2016, prohibited publication of the respondent’s name, the alleged victim’s name and any identifying details of either of them, and particulars of the charge pending the hearing of the charge. Consistent with that, I make an order suppressing publication of the respondent’s name, the witness’s name and any identifying details of either of them until the further order of this Court.
Solicitors:
Meredith Connell, Auckland Franks & Ogilvie, Wellington.
19 Complaints Assessment Committee (CAC 403) v [Brown], above n 2, at [40].
20 Evidence Act 2006, s 6(c).
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