R v AR (CA302/05)

The appellants, AR and MR, face allegations of sexual misconduct against the complainant who has been deaf since birth and was 39 years old at the time of the appeal. AR faces 12 charges of indecently assaulting the complainant between 1972 and 2000. MR faces a charge of sexual violation and two indecency charges, the alleged offending occurring between 1983 and 1986. Both appellants appeal against a District Court ruling that the complainant’s evidence in chief be given by way of videotaped interviews. MR also appeals against the refusal of severance. The court must determine whether the District Court erred in its rulings on the admissibility of the videotaped interviews, whether the complainant was "mentally handicapped" for the purposes of s 23C of the Evidence Act 1908, and whether severance should have been granted. The Court of Appeal found that the Judge's finding that the complainant was "mentally disabled" in terms of s 23C(b)(ii) was open to him on the evidence. The Court concluded that the Judge’s ruling on Regulation 5 had not been plainly wrong, and that the failure to use deaf relay interpreters did not render the videotaped interviews inadmissible. The Court also found that the Judge was entitled to adopt the view that any prejudice to the accused could be overcome by directions to the jury. The appeals are dismissed.