R v Aitchison
[2017] NZHC 3222
•19 December 2017
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2014-019-1004 [2017] NZHC 3222
THE QUEEN v
JASON IAN AITCHISON
Hearing: 30 October to 2 November and 6 to 8 November 2017 Counsel:
D J McWilliam for Crown T Sutcliffe for Defendant
Judgment:
19 December 2017
JUDGMENT OF PALMER J: COMMUNICATIONS ASSISTANT
This judgment is delivered by me on 19 December 2017 at 5.00 pm
pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitor/Counsel:
Almao Douch, HamiltonT Sutcliffe, Barrister, Hamilton
R v AITCHISON – COMMUNICATIONS ASSISTANT [2017] NZHC 3222 [19 December 2017]
Summary
[1] The use of a communications assistant under s 80 of the Evidence Act 2006 is still relatively novel. The trial of this proceeding involved more extensive use of a communications assistant than is usual, in her asking questions of a complainant in pre-recorded cross-examination. For the information of those involved in future such trials, I set out here the developments and decisions relating to the process of using a communications assistant in this trial. The account is taken directly from my Minutes before the trial and from my Bench Notes during the trial.
The retrial
[2] The proceeding was a retrial of the defendant, Mr Jason Aitchison, on six charges of sexual offending against the daughters of two different partners, at different times. The Court of Appeal ordered the retrial because it found serious errors in the performance of Mr Deobhakta, Mr Aitchison’s previous counsel in that:1
(a)Mr Deobhakta failed to brief the defence evidence satisfactorily and, in particular, failed to lead any evidence from Mr Aitchison about particular allegations of offending against one of the complainants, Ms K.2
(b)Mr Deobhakta failed to evaluate the Crown evidence and, in particular, failed to challenge Ms K’s account of that offending.3 The Court said the Crown should have led expert evidence from a suitably qualified professional about the nature, extent and effect of Ms K’s cognitive difficulties and Mr Deobhakta should have cross-examined her on it.4
(c)Mr Deobhakta advised Mr Aitchison not to give evidence he wished to give, because he had not given notice of an alibi, although a notice was not required.5 His erroneous advice deprived Mr Aitchison to lead
1 Aitchison v R [2016] NZCA 529.
2 At [22]–[23].
3 At [24]–[26].
4 At [26].
5 At [27]–[29].
material exculpatory evidence at trial which may have been decisive given concessions made by Ms K under cross-examination.6
[3] The Court of Appeal stated its findings “relate[d] principally to Mr Deobhakta’s defence of Mr Aitchison to the charges of offending against [Ms K], satisfying us that Mr Aitchison has suffered a miscarriage of justice on the charges relating to [Ms K].”7 However, because the Crown had relied on cross-admissibility of the evidence of both complainants on all charges it considered his convictions on all charges must be unsafe.8
[4]The retrial commenced on Monday 30 October 2017 for seven days.
The complainant and communications assistant
[5] Ms K had been assessed by a psychologist, Dr Shirley Hosking, as being intellectually disabled and in the lowest two per cent of the population in terms of general adaptive, conceptual, social and practical functioning. On 8 August 2017 Brewer J granted the Crown’s application, with consent of the defendant, for communications assistance for Ms K. On 29 August 2017 Ms Sally Kedge of Talking Trouble Aotearoa NZ Ltd, issued a report which was filed with the court and made available to counsel for the parties. It included recommendations for 39 ground rules. Some proved not to be relevant to the way in which the proceeding progressed. The others are reflected in the procedures as outlined in this judgment.
Pre-trial conferences
[6] In considering how to approach the use of the communications assistant I consulted two sources I found useful.9 I held four pre-trial conferences with counsel and Ms Kedge which were largely devoted to use of the communications assistant.
6 At [30]–[32].
7 At [34].
8 At [35].
9 Joyce Plotnikoff and Richard Woolfson Intermediaries in the criminal justice system: Improving communication for vulnerable witnesses and defendants (Policy Press, Bristol, 2015); Emily Henderson “Taking control of cross-examination: judges, advocates and intermediaries discuss judicial management of the cross-examination of vulnerable people” [2016] Crim L R 181.
First pre-trial conference
[7] On 7 September 2017 Mr Sutcliffe, counsel for the defendant, expressed concern as to whether Ms K’s disability meant there were questions that could sensibly be asked in cross-examination and, if not, what that meant in terms of his duty to put the defence case to her. He indicated he would not propose to put any questions about the details of the alleged offending, but he would propose to put questions to her about whether her allegations were truthful or not.
[8] Mr McWilliam, for the Crown, appreciated Mr Sutcliffe was in a difficult position. He considered, consistent with the Court of Appeal judgment,10 that, if relevant questions could be put, they should be put. He suggested Ms Kedge may have advice about how questions could be put about whether the complainant was or is lying. He also identified that Ms Kedge’s report indicated there may be a problem with males being present during questioning of Ms K.
[9] Ms Kedge emphasised that Ms K presented as being at the level of development of a three to four-year-old. Whether questions were able to be put to her depended on whether it was possible to simplify them enough. She considered, if cross-examination were to occur, there would need to be clear boundaries set in advance. She considered Ms K was easily confused, dealt with pictures better than abstract concepts, did not have clear pronunciation and could be slow to respond to questions.
[10] I considered we should test whether and what questions could usefully be put to Ms K by Mr Sutcliffe sending to the Court Registry, but not the Crown, the precise questions he would ask of the witness in the absence of a disability. I would forward them to Ms Kedge for her advice about whether, and how, each question can be asked so that Ms K would best understand and respond truthfully to it.
[11] As soon as was practicable Mr McWilliam sent to Ms Kedge the Evidential Video Interview (EVI) that had been played at the first trial, along with associated diagrams, and photographs that may be produced at trial and a family tree so we could
10 Aitchison v R [2016] NZCA 529.
tell who is who. The EVI provided further context to Ms Kedge’s consideration of how Ms K was likely to be able to respond to questions.
[12] I advised counsel, and Ms Kedge, that if I decided cross-examination is possible, I was contemplating ordering Ms K’s evidence in chief and cross- examination be pre-recorded in an EVI. I was also concerned about who should ask the questions and who should be in the room, given the unwillingness of Ms K to discuss aspects of the alleged offending in the presence of a male police officer in her initial interview. I indicated I was contemplating requesting Ms Kedge to ask questions as finalised with counsel and approved by me in advance.
[13] I asked counsel to consider their positions on all these issues before our next conference.
Second pre-trial conference
[14] Before the second pre-trial conference on 21 September 2017, Mr Sutcliffe had forwarded to Ms Kedge the questions he wished to ask Ms K. Ms Kedge had drafted some slides to accompany questions regarding the alleged offending in Hamilton, phrased in such a way she considered would be comprehensible to Ms K. It was envisaged Ms Kedge would ask Ms K the questions in a pre-recorded interview.
[15] Both counsel were comfortable with the general nature of the approach proposed. It transpired Mr McWilliam had received copies of the slides, in error, which included Mr Sutcliffe’s questions but he advised that he had only seen three or four of them and would shred them immediately.
[16] Mr Sutcliffe was concerned to establish how he would ask follow up questions. Mr McWilliam suggested that, if counsel and I attended (whether in the room or observing close by), and Mr Sutcliffe had a supplementary question, he could write it down and pass it to Ms Kedge to ask in the terms she considered appropriate. Mr Sutcliffe and Ms Kedge were comfortable with that approach.
[17]The next steps were:
(a)Mr Sutcliffe considered the questions and slides drafted by Ms Kedge to assess whether he was comfortable the questions adequately reflected the questions he intends to ask. He reverted directly to Ms Kedge.
(b)Ms Kedge drafted slides and questions to reflect Mr Sutcliffe’s questions about the alleged Whangarei offending. She forwarded those to Mr Sutcliffe and to the Registry, but not to Mr McWilliam.
(c)Ms Kedge and Mr Sutcliffe agreed to meet to discuss matters further if required.
(d)Mr McWilliam liaised with the police officer in charge of the investigation to get answers to eight further questions of fact Ms Kedge has posed, which would be helpful to her in formulating questions.
(e)I directed both counsel to indicate, by memorandum, by the end of the week whether they had any difficulty with any of the 39 ground rules Ms Kedge proposed in her report of 29 August 2017.
Third pre-trial conference
[18] The third pre-trial conference was held on 18 October 2017. It was proposed Ms Kedge would be in the room with Ms K during her cross-examination. Counsel and I would be in an adjoining room, observing. A court-taker may also be present. The interview would be pre-recorded. Mr Sutcliffe suggested there was no need for counsel to meet Ms K, in order to minimise stress on her. Mr McWilliam and Ms Kedge agreed. So did I.
[19] Mr Aitchison, the defendant, was entitled to be present. The initially proposed venue was off-site but near the Court and was thought to have a suitable facility for a vulnerable witness. Mr McWilliam agreed to check whether the facilities at that venue meant Mr Aitchison could be present in the same room or observe matters via AVL. He subsequently advised, due to the configuration of facilities and the nature of the work undertaken there, Mr Aitchison should observe by AVL from the Court. I
accepted that, and asked the Registry to confirm whether that could be arranged for Wednesday 25 October 2017.
[20] It was agreed by all parties the questions would be asked by Ms Kedge as communications assistant. Ms Kedge and Ms K would need to be sworn in. I asked Ms Kedge to forward to the Registry and counsel her proposed version and explanation of the oath.
[21] Mr Sutcliffe had provided to Ms Kedge the questions he wished to have asked. I left it to them to finalise those questions. If Mr Sutcliffe had follow-up questions during cross-examination, he would write them down for Ms Kedge to ask in terms she considered appropriate. Mr McWilliam would follow the same process if he had any re-examination questions.
[22] Ms Kedge advised she may need to take breaks from time to time to ensure Ms K could cope with the questions and to check with me, and counsel, that progress is satisfactory. I indicated I would be guided by Ms Kedge on that but I reserved the right to override her view. Ms Kedge considered the questioning may take a long time. She indicated she would seek advice from an experienced United Kingdom intermediary in advance.
[23] Mr McWilliam confirmed he did not propose to have questions put to Ms K in examination-in-chief. Mr McWilliam would also consider whether there is a desirable electronic means by which I could ask Ms Kedge to pause in her questioning so I could hear objections or follow-up questions could be put.
[24] Counsel agreed to the ground rules proposed in Ms Kedge’s report of 29 August 2017. On reviewing the ground rules and my previous minutes after this morning’s teleconference I was not sure we had established exactly whether or when Ms K should view the previous EVI and, if so, how much of it she would view.
Fourth pre-trial conference
[25] The fourth and final pre-trial conference was held on 20 October 2017. The initially proposed venue was found to be unsuitable for an AVL. I agreed Ms Kedge
would pose the questions to Ms K in Jury Room 2 in the High Court in Hamilton. This room has its own facilities. The Registry arranged secure entrance at the back of the building. There was an CCTV link to me, counsel and the defendant in the courtroom in the Hamilton High Court. There did not need to be contact between the two rooms but contact was possible if required. It was required, as Ms Kedge needed to come into Court to discuss things with me and counsel at several points.
[26] Ms Kedge suggested she meet with Ms K on the relevant day and go with her to the interview location, in order to ameliorate stress. All parties agreed to that. I indicated Ms Kedge would need to be careful not to discuss with Ms K any matters relating to the evidence to be given.
[27] Ms Kedge had identified “test of concept” questions, the correct answers to which would be known, that would test whether her proposed mode of asking questions would work with Ms K. If Ms K did not answer these questions correctly that would indicate the answers to further questions would not be reliable. In that case, Ms Kedge’s view was that there may be no point in proceeding further.
[28] Counsel for both parties were comfortable with this proposed approach as long as there was no possibility that the answers would be previously telegraphed to Ms K, either by Ms Kedge or any other person. That meant obtaining the answers to such questions very carefully, and not from Ms K herself or from any person who would have contact with her between the answer being obtained and the question being asked. Ms Kedge reviewed her test of concept questions accordingly and I requested her to send another version to counsel and the Registry.
[29] Ms Kedge had prepared and distributed some introductory statements and questions leading up to “rules” to be put to Ms K for the giving of her evidence. I drew attention to s 77(4) of the Evidence Act 2006 which provides a witness may give evidence without taking an oath with the permission of the judge. In that case s 77(4)(b) requires the witness “must be informed by the Judge of the importance of telling the truth and not telling lies, before the witness gives evidence”.
[30] I indicated I was considering whether the task of so informing the witness could be delegated by a judge to a communications assistant. Both counsel submitted it could. Mr Sutcliffe submitted the purpose of the section requires I only need satisfy myself that the witness understands the importance of telling the truth. He pointed out oaths are routinely administered by registrars rather than the judge. Mr McWilliam agreed.
[31] I considered I could discharge the requirement in s 77(4)(b) through Ms Kedge as communications assistant, in the same way that questions by counsel for both parties were being put through her. Regarding the precise statements and questions through which this requirement is met, I considered:
(a)Ms Kedge may need to review the questions to take into account the sequence, being:
(i)Ms Kedge’s oath;
(ii)the oath questions;
(iii)test of concept questions;
(iv)EVI-watching and evidence-in-chief;
(v)cross-examination; and
(vi)re-examination;
(b)As to the rules, I directed Ms Kedge to add a statement that it is very important that Ms K does not tell lies, explaining as clearly as possible what that means, perhaps in the context of her proposed point about there being no made-up stories.
[32] We discussed Ms K watching her previous EVI. Ms Kedge has been advised by an experienced intermediary in the United Kingdom that doing so, and asking questions during that, may assist to orient Ms K to the questions that followed. She
proposed that be done in the same place the questions were asked. Ideally it would occur the previous day to the questions but Ms Kedge’s opinion was Ms K’s ability to concentrate was not a problem so she considered it would be feasible to view the EVI and ask questions on the same day.
[33] Counsel were happy with this proposal apart from pointing out that asking additional questions in such a process comes close to constituting further evidence-in- chief. I agreed. Accordingly, I directed Mr McWilliam would need to take responsibility for, and pose and approve in advance, any such questions to be asked by Ms Kedge. This would need to be subject to the same CCTV and recording arrangements as the questions. Accordingly, both the watching of the EVI and the questions would occur on Wednesday 25 October 2017.
The pre-recorded interview
[34]On Wednesday 25 October 2017, we pre-recorded the cross-examination of Ms
K. Ms K and Ms Kedge were in a jury room in the Hamilton High Court. The defendant, counsel and I were in a nearby courtroom. The defendant was placed in custody for the court session, as he would be at trial.
Oaths
[35] By AVL, Ms Kedge affirmed she would assist Ms K to understand all communication and express herself as effectively as possible during these proceedings to the best of her knowledge, skill and belief. Then, under my delegation and direction under s 77(4) of the Evidence Act 2007 and consistent with my earlier decision, Ms Kedge informed Ms K of the importance of telling the truth and not telling lies.
Test of concept questions
[36] Ms Kedge first asked the test of concept questions, the answers to which were known, to test what mode of answering questions suited Ms K best and whether the proposed mode would work. On the basis of Ms K’s answers, Mr Sutcliffe expressed some concerns about Ms K’s understanding of truth. Mr McWilliam indicated he was not overly concerned about the answers in that regard and was content to proceed. I
ruled that we would proceed so that Ms K’s testimony could be considered in the round.
[37] Ms Kedge considered Ms K responded best to questions by pointing to yes/no/unsure options so I agreed she should proceed accordingly.
[38] During adjournments, and when Ms Kedge left the room, a Victims’ Adviser stayed with Ms K. During the lunch adjournment, with the consent of all parties, Ms K had lunch with her relatives.
EVI
[39] Ms K and Ms Kedge then watched Ms K’s Evidential Video Interview (EVI) from 2013. The EVI was effectively Ms K’s evidence-in-chief. Mr McWilliam had no other questions to ask Ms K in examination-in-chief. The EVI finished around
12.30 pm.
Cross-examination
[40] At 12.30 pm I agreed to Mr Sutcliffe’s proposal to give to Mr McWilliam a copy of his proposed cross-examination questions, to facilitate ironing out any objections in advance. Court adjourned for one-and-a-half hours for lunch and for Mr Sutcliffe, Mr McWilliam and Ms Kedge to confer about the questions.
[41] After the lunch adjournment, Ms Kedge worked through with Ms K the two sets of cross-examination questions prepared in conjunction with Mr Sutcliffe, with an adjournment between the two sets. After conferring with the Police officer-in- charge, Mr McWilliam determined he had no re-examination questions to ask.
[42] I consider the process worked well in eliciting clear answers from Ms K. I thanked Ms Kedge for her able assistance. That’s not to say there weren’t inconsistencies, as there can be with any witness. What the jury would make of the testimony would, of course, be over to them, in the context of all the evidence.
The trial
[43] The trial began on Monday 30 October 2017. On the afternoon of Tuesday 31 October 2017, the jury watched the part of the pre-recorded evidence of Ms K featuring the test of concept questions and her 2013 EVI. They watched the rest, comprising her cross-examination, on Wednesday 1 November 2017.
[44] Before the pre-recorded evidence of Ms K was played for the jury, with counsels’ prior agreement, I advised the jury that the way in which her evidence has been taken was a bit different from the others in the use of a communications assistant. I said a communications assistant was used here because of the challenges in communicating with Ms K due to her developmental difficulties, about which they had already heard from Dr Hosking. I advised the jury the purpose of using a communications assistant was to help Ms K understand the questions put to her and to help us all understand her answers. I advised the system was worked out in cooperation between counsel for the parties under my supervision.
[45] No transcript of Ms K’s pre-recorded evidence had been prepared. It may have been easier if it had. But the FTR transcribers transcribed it through the microphones easily enough.
[46] Before the lunch adjournment on 31 October, in the absence of the jury, I asked counsel whether either of them proposed to make submissions to the jury on which test questions Ms K had answered correctly and which she had answered incorrectly. After lunch, in the absence of the jury, I suggested to counsel that may be something which would be appropriately the subject of agreed facts, if they were agreed, as it seemed to be a matter of evidence, rather than of submissions. I asked counsel to consider that further. They did so, and agreed facts were provided to the jury accordingly, on 2 November 2017.
[47] After Ms K’s pre-recorded interview was played on 1 November, Mr McWilliam produced, as Crown exhibits:
(a)Ms Kedge’s introductory questions and answers;
(b)the papers used by Ms Kedge for names and rules;
(c)Ms Kedge’s questions and answers about the alleged Hamilton offending;
(d)Ms Kedge’s questions and answers about the alleged Whangarei offending; and
(e)the USB drive of the pre-recorded evidence.
[48] The Crown’s case closed on 2 November 2017. The defence case was presented on Thursday 2 November and Monday 6 November 2017. We did not sit on Friday 3 November due to a judiciary-wide commitment. I summed up the case on Monday 6 November 2017. In the course of summing up, relevantly, I said:11
You must consider all the evidence. You have heard sworn evidence from witnesses and you will have a transcript of what they said with you in the jury room. You saw and heard [a witness] give evidence over an audio-visual link. You have had evidence read to you by agreement of the parties. You have watched DVD recordings of an interview with [Ms K] and a recording of her evidence given through a Communications Assistant. You will have transcripts of these with you in the jury room. Exhibits have been produced, including the booklets of text messages and folder of photographs. All that is evidence. Just because some evidence was read to you, or isn’t in dispute, or was taken in a different way does not make it lesser evidence. These are all accepted alternative means of giving evidence to you. You should not in any way hold those alternative means against the defendant or in favour of him, or think they say anything about the cases for or against him.
[49]I also said:12
You will have seen Ms [K] has difficulties understanding and speaking about some things. You have heard Dr Hosking’s expert evidence about that. Among other things she said Ms [K] has a very low level of intellectual functioning, in the lowest two per cent of the population, and is very vulnerable and does not have a good understanding of time. You can take Dr Hosking’s evidence into account as expert evidence. But you may still accept or reject it as you think appropriate. You may choose to accept parts of her evidence and reject other parts, for example. After all, this is trial by jury, not trial by expert. You are in the best position to assess all the evidence given in court. Mr McWilliam says Ms [K] is not someone who could make up a story with the detail she has and be able to answer questions about it some months
11 R v Aitchison HC Hamilton CRI-2014-019-1004, 6 November 2017 (Summing Up of Palmer J) at [12].
12 At [23].
later. Mr Sutcliffe says it is clear she suffers from cognitive impairment and measures were agreed to allow her to give evidence, but that doesn’t change the need for you to be sure she is telling the truth. Again, use your common sense. There are no special rules for assessing Ms [K’s] evidence. As with any witness it is for you to decide whether you accept her evidence, and what weight you give it.
[50] The jury deliberated until the afternoon of Wednesday 8 November 2017. After I issued a majority verdict direction and a gentle Papadopoulos direction, verdicts on four of the six charges were taken. The defendant was found guilty, unanimously, of two charges of rape – one for each complainant, including one of rape of Ms K. He was found not guilty of one charge concerning each complainant, by a majority, including one of rape of Ms K. No verdicts were delivered in relation to two charges concerning the other complainant. I thanked counsel for their constructive approach to the unusual features of the trial, which revolved around use of the communications assistant.
[51]I sentenced the defendant on 19 December 2017.
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Palmer J
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