R v B (CA92/04)

[2004] NZCA 408

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

SUPPRESSION OF NAME, ADDRESS AND IDENTIFYING PARTICULARS OF APPLICANT

IN THE COURT OF APPEAL OF NEW ZEALAND

CA92/04

THE QUEEN

v

B (CA92/04)

Hearing:         26 August 2004

Coram:Glazebrook J William Young J O'Regan J

Appearances: S L Baigent and L C Ord for Appellant G C de Graaff for Crown

Judgment:      9 September 2004

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Introduction

[1]        The applicant is facing trial for indecent assaults on his daughter, W, and on two brothers, C and G. The alleged offences occurred between 1971 and 1995 when

R V B (CA92/04) CA CA92/04 [9 September 2004]

the complainants were children or teenagers. The applicant seeks leave to appeal against a pre-trial ruling of Judge Gaskell that the complainant, W, give her evidence at the applicant’s forthcoming trial by way of video link from the United States.

[2]        At the time of depositions, W was living in Australia but has subsequently moved to the United States. It appears that, if she leaves the United States to come to New Zealand for the trial, she will not be able to return to her husband and two young children until her immigration status in the United States is resolved. This information was not, however, before Judge Gaskell and was not yet in the form of affidavit evidence before us.

[3]        There are two questions for this appeal, the second arising only if the first is answered affirmatively:

(a)Is there jurisdiction for this Court to hear the appeal? This depends on whether the video link application can be seen as an application under s344A of the Crimes Act relating to the admissibility of evidence. If it does not, it is common ground that there is no right of appeal pre-trial under s379A of the Crimes Act.

(b)Was there jurisdiction for the District Court Judge to make such an order and, if so, should it have been made in these circumstances?

Judge Gaskell’s ruling

[4]        The Crown had initially applied for orders that the complainant, W, and the complainant, C, who lives in Australia be permitted to give their evidence by way of two-way video link. This was on the basis that it was not practicable for the complainants to travel to New Zealand and that it would be unreasonable in the circumstances to require them to do so. It had been decided, however, to bring C from Australia for the trial. The application was therefore confined to W. Judge Gaskell said:

[30]      Ms Baigent submitted that the jury should be entitled to evaluate fully the complainants, as credibility is the essential issue. Ms Baigent asked

the Court to accept that the use of a video-link was inferior to having the witness present in Court. Ms Ball disagreed with that.

[31]      The Court has an inherent jurisdiction to manage the conduct of trials in its Court. The matter is a discretionary one. I have not been referred to any cases where this point has arisen. The appropriate test may be whether there would be prejudice to the accused from the use of the video-link in respect of the witness [W]. There is no evidence before the Court to indicate that he would be. The Court should take into account practical  considerations in requiring a person to travel from the United States to give evidence at trial.

[32]      There being no evidentiary basis to establish any prejudice to the accused from use of a video-link, I conclude it would not be in the interests of justice to refuse the order the Crown seeks in respect of the complainant [W]. Accordingly, the order is made.

Submissions of the parties

[5]        Ms Baigent, for the applicant, submitted that the question for the Court is whether the proposed evidence to be given by video link is admissible. She submitted that it is not and that, therefore, the question is one coming within s344A. In policy terms, too, it is preferable that questions such as these be settled before trial rather than afterwards. She submitted, further, that this Court should follow the case of R v Accused (CA32/91) [1992] 1 NZLR 257 which, in her submission, held, by majority, that there was jurisdiction to hear appeals in these circumstances

[6]        Ms de Graaf, for the Crown, submitted that this case is concerned solely with the manner in which W may give her evidence, which  is  clearly  admissible. Section 344A does not apply and there is, therefore, no appeal right pre-trial under s379A(aa). The situation was different in R v Accused (CA32/91) as that case related to the admissibility of a pre-recorded videotape. In the Crown’s submission, the manner in which W gives her evidence is a procedural matter for the trial Judge, who will be obliged to ensure the link is used both in the interests of justice and fairly. The applicant will, in the event of conviction, be able to take this point in any subsequent appeal or it could be dealt with as a reserved question of law under s380 of the Crimes Act. Judicial review would also be available, as occurred in the case of Accused (CA60/97) v Attorney-General (1997) 15 CRNZ 148.

[7]        With regard to the video link itself, Ms Baigent submitted first that the District Court Judge had no jurisdiction to made the order she did, in the absence of legislative authority. Secondly, she submitted that the order should not in any event have been made, in the absence of evidence from the Crown as to the circumstances of W. Finally, she submitted that the Judge applied the wrong test. In Ms Baigent’s submission, the test of whether an order should be made is not determined by whether the defence can prove there will be prejudice suffered. Prejudice to the defence is a factor to be considered only once there is a factual basis on which to make the order. Even if there is jurisdiction to make orders of this kind, they should only be made with regard to complainants in exceptional circumstances.

[8]        The Crown submitted that there was jurisdiction for Judge Gaskell to make the order she did under the inherent powers of the District Court to regulate its procedure. With regard to the second point, the Crown accepted that, for a variety of reasons, its application for the video link was not accompanied (as it should have been) with evidence as to the difficulties  faced  by  W  if  she  had  to  come  to  New Zealand  to  give  evidence.  That  was  in  the  process  of  being  rectified.   Ms de Graaff also conceded that there had been no details provided to the Judge as to how the video link would operate, although that may have arisen because it was assumed that the arrangements would follow standard procedure or that the details would be worked out between the parties.

[9]        With regard to the third point made by Ms Baigent, the Crown accepted that orders for the giving of evidence by video link may be more readily made in the case of witnesses whose evidence is not contentious. On the other hand, there was nothing to stop such orders being made with regard to complainants if in all the circumstances it was fair to make such an order. In this case, the witness’ personal circumstances tell strongly in favour of allowing her to be able to give her evidence by way of video link. The applicant will be able to cross-examine her and, as long as she is sworn in such a way as to ensure that she is subject to perjury sanctions, there will, in the Crown’s submission, be no prejudice to the applicant. If there remain concerns as to adverse inferences that may be drawn from this alternative way of giving evidence, these can be met by jury directions.

Jurisdiction

[10]      In our view, there is no jurisdiction for this Court to grant leave to appeal. The issue in this case is not one of a challenge to the content of W’s evidence. It is a challenge to the manner in which she will give such evidence. That is a procedural matter that does not come within s344A and there is, as a consequence, no appeal right under s379A.

[11]      The case of R v Accused (CA32/91) relied on by Ms Baigent is not on point. It concerned the admission of a pre-recorded videotape. It was not a decision relating to the manner of giving viva voce evidence. Although, as discussed below, two (and probably three) members of the Court considered that s344A could cover modes of giving evidence, these were obiter comments only. There have, by contrast, been other cases where the question before the Court was about the manner of  giving  viva voce evidence. In those cases, this Court held that it has no jurisdiction to hear pre-trial appeals on that question. We see no reason to depart from these authorities.

[12]      We turn first to the case of R v Accused (CA32/91). As indicated above, the case concerned whether a pre-recorded videotape of the evidence of a child complainant was admissible. The five judges were split over the issue of  jurisdiction.

[13]      Richardson J,  referring  to  the  case  of  R  v  Accused  (CA171/89)  (1989)  4 CRNZ 339 (CA) discussed below, said that questions as to the manner in which evidence is adduced do not come within s344A. He saw the issue of the videotape as being one about the manner of giving evidence and not of admissibility. The acceptance of this Court in R v Lewis [1991] 1 NZLR 409, but without argument, that it had jurisdiction to consider a pre-trial appeal on videotaped evidence, was, in his view, per incuriam, as R v Accused (CA171/89) had not been brought to the attention of the Court (at 239).

[14]      Hardie Boys J took a broader view of s344A. He considered that what was involved in the case at issue before the Court was whether evidence, of a kind (ie the videotape) that would otherwise not be admissible, should be admitted (at 245). He

doubted, however, that questions concerning the mode of giving evidence rather than its admissibility could be seen as coming within s344A (at 246).

[15]      Cooke P, on the other hand, considered that s344A covered the admission of videotape evidence. For policy reasons, there should be a wide interpretation given to the words, “admissibility” and admissible” in that section (at 235). Casey J also considered that s344A should be given a wide interpretation. He had been a member of the Court in R v Accused (CA171/89) but said that, on reflection, he thought that the Court in that case had taken too narrow a view of the term, admissible. He considered there to be powerful reasons of convenience against reading it down to its technical narrow meaning in the law of evidence, rather than in its natural and ordinary sense (at 242). Both Cooke P and Casey J preferred the decision of R v Lewis.

[16]      Gault J said that he was satisfied that the Court had jurisdiction to hear the current appeal and that he favoured a broad interpretation of ‘admissible’ and ‘admissibility’ in s344A for the reasons set out by Cooke P. He expressly said, however, that he would not embark upon a consideration of the difficulties in reconciling the previous decisions of the Court (at 248).

[17]      We now turn to the cases concerning the manner of giving evidence. The first case is the one referred to above, R v Accused (CA171/89) (1989) 4 CRNZ 339. The question before the Court in that case was whether child complainants should be allowed to give evidence from another room via closed circuit television. The Court held that it had no jurisdiction to hear the appeal. Richardson J, for the Court, said  (at 341):

Admissibility in an evidential sense is concerned with the content of evidence: the manner in which evidence is adduced is a procedural matter. The question of admissibility is one as to whether particular items of evidence may properly be adduced. And there are indications in the scheme and language of s 344A which support the conclusion that it was that meaning which the legislation intended to accord to “admissible” and “admissibility” in the context of s 344A. Paragraph (a) of subs (1) is directed to cases where the prosecutor or the accused wishes to “adduce any particular evidence at the trial”. “Adduce” means lead or introduce and the paragraph is concerned with the adducing of introducing of any particular evidence. And subs (4) preserves the discretion of the trial Judge to allow or

exclude any evidence in accordance with any rule of law, again referring to the law of evidence.

On the consideration we have been able to give to the matter today, we conclude that admissibility is used in that evidential sense, and that s 344A does not extend to procedural questions. In this case, the Crown’s application is not concerned with the content of any particular piece of evidence proposed to be adduced at the trial. On the contrary it is acknowledged for the respondents that the persons concerned could go into the witness box and give evidence in terms of the statements in written form tendered at depositions. Counsel accepted that they could not argue that the proposed use of television for relaying what the children would say from the other room to the courtroom made the evidence inadmissible. In short, it is common ground that what the witnesses have said in their statements will be admissible if their evidence is given at the trial in the manner required by law. It is the procedure proposed to be followed to elicit that material in evidence which is in question. For these reasons we conclude that the Judge had no jurisdiction under s 344A to rely on the oral application and  it follows that we have no jurisdiction under s 379A to hear the appeal.

[18]      Although this was an oral judgment and decided under pressure of time, it was nevertheless a decision of a five Judge Court and a decision on very similar facts to the present.

[19]      There is also the later case of R v Coleman (1996) 13 CRNZ 655. In that case this Court held that it had no jurisdiction to hear an appeal against an order granting a witness anonymity and allowing the witness to give evidence from behind a screen so the accused could not see the witness. The Crown’s application had been grounded only on the High Court’s inherent jurisdiction and that was the basis for making the order. Henry J, for the Court, said that the issue was not one of admissibility of evidence. He said (at 666):

Section 344A is concerned with the admissibility of evidence. The admissibility of the oral evidence to be adduced through Witness D is not under challenge. He is competent, compellable and his intended oral evidence does not infringe any of the rules governing admissibility. The matters under challenge are his entitlement to anonymity and the provision of a screen when giving admissible evidence. Although associated with the giving of evidence, they have no bearing on the content of the evidence. It is also of some significance that neither the Crown nor the Judge sought to invoke s344A as a basis for the present pretrial orders, reliance being placed only on the Court’s inherent jurisdiction. It would require an unacceptable straining of the words of s 344A to bring these orders within their purview.

[20]      Henry J went on to say that, in policy terms, it was in the interest of justice for trials to be conducted without delay, and it was accordingly appropriate that the s379A pre-trial appeal rights be circumscribed (at 527-528):

There are good reasons for confining the availability of s 379A and restricting appeals against pretrial rulings. The importance of trials being processed expeditiously is now well recognised. The achievement of that aim is not helped by the proliferation of pretrial applications, sometimes not designed to that end, and the need to accommodate subsequent appeals if the intermediate right to appeal is generally available. Further, issues which are not within the strict confines of s 379A may well require an assessment of fairness and overall justice which can best be undertaken in the context of a trial. Section 379A has no doubt been drafted carefully so as to avoid its very purpose being frustrated. Any accused person, including each of the three applicants, has the protection of appeal rights under s 383 and possibly s 380 whereby all issues now raised can if appropriate be fully considered.

[21]      Henry J also commented that the case of R v Accused (CA32/91) concerned admissibility of evidence in the true sense, namely adducing evidence by way of a videotaped interview, a matter clearly within s344A. He remarked that, although both Cooke P and Casey J expressed the view that other decisions on other modes of giving evidence could be the subject of pre-trial appeal, the decision itself was limited to the admissibility of the videotape. This was also, in his view, the case in   R v Moke and Lawrence [1996] 1 NZLR 263 (at 527).

[22]      We also note the decision of this Court in M (70/97) v R CA 70/97, 29 May 1997 in which a court of five (including Gault J) was asked to hear an appeal under s379A of the Crimes Act from the decision of a High Court judge ruling that evidence of an adult witness could be given by way of closed circuit television video link. The Judge had treated the matter as falling within the Court's inherent jurisdiction, but this Court was invited to treat the order as having been made under s344A. The Court declined to do so. It held that R v Coleman was not able to be distinguished as the only issue in the case was not one of admissibility, but whether a witness would be permitted to give evidence from outside the courtroom. The Court had been referred to the decision of R v Accused (CA32/91) but, not having heard full argument, did not consider it appropriate to embark on a reconsideration of the authorities. It therefore applied R v Coleman, while stating that legislative reform seemed desirable so that there could be pre-trial appeals in circumstances where rulings could be seen as going to jurisdiction or to the validity of the trial process.

[23]      The present case is indistinguishable from M (70/97) v R, aside from the distance over which the video link is to travel and the presence of the witness in another jurisdiction.

Video link

[24]      Although we heard full argument on the video link issue, it is not appropriate for us to make any comment on it as the matter may come before this Court in the event the applicant is convicted, or before the High Court on judicial review.

Result

[25]The application for leave to appeal is dismissed for want of jurisdiction.

Solicitors:

Sladden Cochrane, Wellington for Appellant Crown Law Office, Wellington