R v Kahui HC Auckland CRI 2006 057 001135
[2007] NZHC 1890
•21 June 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006 057 001135
REGINA
v
K
Hearing: 21 June 20007
Counsel: Kirsten Gray for Crown
Shane Cassidy for Accused
Judgment: 21 June 2007
Reasons: 10 July 2007
REASONS FOR JUDGMENT OF WILLIAMS J [Re: Mode of Evidence]
Judgment delivered by Hon. Justice Williams on
21 June 2007
Reasons for Judgment delivered on
10 July 2007
pursuant to R 540(4) of the High Court Rules
……………………………..
Registrar/Deputy Registrar
Date: ……………………...
R V K HC AK CRI 2006 057 001135 21 June 2007
.On 21 June 2007 the Crown’s application was granted for a direction that the complainant in this case give her evidence with a screen or one-
way glass placed so that she cannot see the accused.
Issue
[1] In this trial the accused is charged with 26 offences including aggravated burglary, injuring with intent to injure, two counts each of assault and threatening to kill, kidnapping and 18 charges of various forms of sexual assault. All the charges are said to have occurred over something under five hours from the evening of 13
June 2006 until early the following morning.
[2] The principal prosecution witness is, of course, the complainant. She is an adult woman.
[3] On 21 May 2007 the Crown applied for an order permitting the complainant to give her evidence screened from the accused in a manner such that she is unable to see him. That application was opposed but was granted on 21 June 2007. The Court said that its reasons for granting the order would be given in writing as soon as practicable. These are those reasons.
Facts
[4] Accepting that what follows is taken from the Police summary of facts and the prosecution briefs of evidence, and has thus not yet been subject to cross- examination, it is nonetheless the case that, if the complainant’s evidence is accepted by the jury, she was, over that five hour period, subjected to a wide range of sexual offending at the hands of the accused in circumstances of actual or threatened violence.
[5] She has been attending counselling on about a fortnightly basis with an experienced clinical psychologist, Ms Mafi, since a few days after the alleged offending.
[6] Ms Mafi filed an affidavit in support of the Crown application and was cross- examined on it at the hearing.
[7] Through that affidavit, the Court was advised the complainant was unknown to the accused at the time of the alleged offending and now feels terrified of him to the point where: “although she would like to look him in the eye, she thinks her fear would prevent her from being able to do this”. She has had “marked symptoms of psychological distress” since 13 June 2006 coupled with repeated “intrusive memories involving the accused, disturbed sleep and a fear of being on her own in her home”. She “rates going to Court as the biggest ordeal she has had to face in her life” apart from the alleged offending. The likely length of her evidence, including cross-examination, is also a marked concern.
[8] Ms Mafi’s experience is that high levels of stress can have detrimental effects on performance in the sense of an ability to think clearly and recount matters in detail. That led to Ms Mafi’s opinion that: “she would be unduly distressed if she has to give evidence without any protection from the accused. This is also likely to compromise her ability to focus on questions and provide the degree of detail likely to be required in the trial”. She said the complainant’s “level of fear and anxiety is at the upper end of what I have seen in people who have been through sexual assault.”.
Discussion
[9] There is, of course, express power for the Court to permit the giving of evidence by witnesses who are visible to the accused but in a way where the accused is invisible to them. The most notable instance is in children giving evidence, particularly in trials of sexual offences, by means including closed circuit television where the cameras are so positioned that the accused never comes into shot, or screens (Evidence Act 1908 2 34C ff)
[10] Beyond that, in special cases it is, however, accepted that permitting adult witnesses to give evidence in such a fashion is a matter of the inherent jurisdiction of the court and that such orders are only infrequently made. That has been recently reiterated by the Court of Appeal in R v Daniels [2007] NZCA183 CA305/06 8 May
2007 at para [19]-[20] where the Court held:
[19] … We accept that, in the case of mature complainants, the court’s inherent power to regulate the way in which evidence is given, including the use of a screen, will be invoked sparingly: R v Accused (CA494/97) (1998)
16 CRNZ 149 at 155 (CA) and R v Wihongi CA432/02 6 May 2003 at [17]. The judge recognised that, but was satisfied that this complainant’s
professed inability to give evidence if she had to face the accused was genuine. ... In R v L (1990) 6 CRNZ 383, Eichelbaum CJ dealt with a
submission that screens should not be ordered because, it was said, the complainant had been “able to face the accused for a lengthy period after the
abuse commenced, in that she continued to live in the same house”. The Chief Justice said at 385: “However, it is difficult to equate that with a Court situation, where the complainant has to make allegations and do so in a
public or semi-public setting.” We agree.
[20] Hillyer J was entitled to rely on the views of a sexual abuse counsellor when making his decision: there is no requirement that only the views of medical practitioners or registered psychologists can be taken into account. Although this application was not strictly within the regime set out in ss 23D-23I of the Evidence Act, we accept that the broad thrust of those sections should be followed when determining like applications made under the inherent jurisdiction. It is not a requirement of a statutory application as to the mode by which a complainant’s evidence is to be given that the judge is limited to considering reports only from expert witnesses as defined in s
23G. On the contrary, the judge is entitled to “call for and receive any reports from any persons whom the Judge considers to be qualified to advise on the effect on the complainant of giving evidence in person in the ordinary way or in any particular mode described in section 23E”: see s 23D(3). As Tompkins J said in R v Hauiti (1990) 6 CRNZ 599, s 23D(3) “does not call for formal qualifications”. Applying that subsection by analogy to this application, we are quite satisfied that Hillyer J was entitled to take into account the sexual abuse counsellor’s report and opinion. …
[11] At bottom, the normal method used throughout at least the common law world for witnesses giving evidence in criminal trials by their being personally present in the courtroom where the accused is also personally present would appear to be based on the ingrained proposition that the fairness of trials and the proper adjudicative process on guilt or innocence is enhanced by the accuser facing the accused.
[12] Departures from that norm are permitted only in special circumstances – such as young child complainants in sexual cases – and then only to the least extent necessary to ensure the evidence is given, and the Court properly able to adjudicate, on guilt or innocence.
[13] The norm appears to be one of very long standing, but whether there is empirical evidence to support it is unknown. Such would be a fascinating study, as would the question as to whether the norm remains the optimum means of conducting trials in an era of widespread digital cameras, mobile phones with camera facilities, email and the internet.
[14] Though dealing with a Crown application to permit a witness who was willing to give evidence (but not travel) by way of videolink from the United Kingdom, the observations in R v Wong (HC Auckland CRI 2005 004 15296 17 May
2006) may be germane to the present point, indeed the more so as the complainant will be in the same courtroom as the accuser:
[16] Mr Shaw submitted that what the Crown sought by its application was “beamed in testimony”, something the Court should not countenance in a criminal trial absent express statutory authority, particularly where the witness is as important as Mr McKinnel and one whose credibility was decidedly in issue.
[17] He submitted no statutory provision covered the present situation. Provisions such as the Evidence Act 1908 ss 48ff and the Evidence Amendment Act (No.2) 1998 Part 4 both applied to the reverse situation of evidence being taken in New Zealand for overseas Court proceedings, the Evidence Amendment Act 1994 contains provisions as to video links in New Zealand proceedings but only applies in trans-Tasman matters (and contains detailed specifications as to how such evidence is to be given) the Mutual Assistance in Criminal Matters Act 1992 procedure, including that of s 12, has not even been initiated (even though it applies to the United Kingdom: Mutual Assistance in Criminal Matters (Prescribed Foreign Country) (United Kingdom) Regulations 1999 SR 1999/259). Part 3B of the High Court Rules and RR 502A-J, whilst providing for video link evidence, again only apply in civil proceedings and those conducted on a trans-Tasman basis. Other provisions such as the Evidence (Witness Anonymity) Amendment Act 1997; the Evidence Act 1908 ss 13C ff and s 23C ff and the use of screens and closed circuit television in sexual cases under the Evidence Act 1908 s 23E(1) were all specific statutory provisions which Parliament thought justified. All were an erosion of what Mr Shaw submitted was a “bedrock procedural guarantee” of accused persons being entitled to face their accusers.
[18] He submitted that the order sought by the Crown ran counter to at least the spirit if not the text of the accused’s right, vouchsafed by the New Zealand Bill of Rights Act 1990 s 25(f), to “examine the witnesses for the prosecution and to obtain their attendance and examination of witnesses for the defence and in the same conditions as the prosecution case”. He submitted the position was not saved by NZBORA s 5.
…
[20] Mr Shaw’s comprehensive research enabled him to refer to a considerable number of overseas statutory provisions showing, he submitted, first, that overseas jurisdictions regard legislation as necessary before permitting measures such as video link evidence being given from another country and, secondly, detailing the mode by which such evidence could be applied for, applications granted and the evidence given. He pointed to a number of those provisions being offence-specific and the procedural requirements being detailed and covering such matters as the possibility of perjury, contempt of Court and those who might be present when such evidence was given.
…
[23] … Mr Shaw also placed especial reliance on the decision of the US Court of Appeals for the 11th Circuit in the United States of America v Yates and Pusztai (No. 02-13654 13 February 2006) which held that the first instance decision to permit two witnesses in Australia to give evidence by means of a television monitor to a trial in Montgomery, Alabama, violated the defendants’ Sixth Amendment right to confront the witnesses against them. But since the Sixth Amendment expressly says that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him”, and there is a significant jurisprudence on the interpretation of that right, that fact alone distinguishes the case for present purposes.
[24] In fairness to Mr Shaw’s submissions, however, it should be noted that the majority’s judgment in Yates includes the following observation (pp 14-
15) :
The simple truth is that confrontation through a video monitor is not the same as physical face-to-face confrontation. As our sister circuits have recognized, the two are not constitutionally equivalent. See, e.g. United States v Bordeaux, 400 F.3rd548, 554-55 (8th Cir.2005). The Sixth amendment’s guarantee of the right to confront one’s accuser is most certainly compromised when the confrontation occurs through an electronic medium. Indeed, no court that has considered the question has found
otherwise; even the Gigante court acknowledged that, “the use of remote, closed-circuit television testimony must be carefully circumscribed.” United States v Gigante, 166.F.3d 75, 80 (2d Cir.1999).
…
[29] The indications being that it is open to the Court to make the orders sought in exercise of its inherent jurisdiction, the next question is whether there is a precedental basis for following that course.
[30] The answer is that there is, at least to a limited degree.
[31] In considering the cases, it is instructive to begin by recounting the observations of the Court of Appeal in R v Moke and Lawrence [1996] 1
NZLR 263, 267 to the following effect :
… it is both unwise and unnecessary to seek to define the scope of the Court’s inherent jurisdiction. Broad principles governing its exercise is all that is required. The Court may invoke its inherent jurisdiction whenever the justice of the case so demands. It is a power which may be exercised even in respect of matters which are regulated by statute or by rules of Court providing, of course, that the exercise of the power does not contravene any statutory provision. The need to do justice is paramount.
[32] In B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95, this Court was required to deal by way of judicial review with an order by the Tribunal that evidence be received by way of a satellite video link-up to enable an overseas medical expert who was unable to attend the hearing to give evidence. The making of the order was upheld, it being found to be within the Tribunal’s inherent powers “which the common law has held to be associated inferentially with Commissions of Inquiry” (at 102) notwithstanding that the District Court Rules 1992 apply and required evidence to be “given by means of witnesses examined orally in open court”. Introductory words creating an exception were held to apply in favour of other Rules requiring the procedure adopted to be the “best adapted to secure the just, expeditious and economical disposal of the proceeding”. The Judge then expressed the view that “evidence available through video link is effectively viva voce evidence” (at 104-105) and :
… in matters of procedure as opposed to matters of substantive law, the Courts have always felt able to adopt innovative new procedures that will improve the efficiency of the Court. Even if the rules could not be construed so as to create the necessary jurisdiction, this Court would not be left impotent to act without legislative intervention. I am reminded of the words of Lord Donovan in Myers v Director of Public Prosecutions [1965] AC 1001, at p 1047:
“The common law is moulded by the judges and it is still their province to adapt it from time to time so as to make it serve the interests of those it binds. Particularly is this so in the field of procedural law.”
Cooke P, in R v Accused (CA 32/91) [1992] 1 NZLR 257 at p 262 a decision concerning the videotaping of children’s evidence considered that the inherent jurisdiction of the court could be invoked to authorise closed circuit evidence and probably to videotape evidence also. Citing Viscount Haldane’s judgment in Scott v Scott [1913] AC 417, 437-438, Cooke P referred to the need to:
“ … keep in the forefront Viscount Haldane LC’s emphasis … on the paramount duty of the Court to adapt its procedure to ensure that justice is done. This adaptability should enable the adjustment of Court procedure to take advantage of technological advances.”
[33] A review of the then state of video link reliability in overseas jurisdictions was undertaken, following which the Court concluded (at 107) :
To conclude, it appears that video linking, or teleconferencing, is gaining acceptance as a means of presenting legal argument and the evidence of witnesses in Canada (the Supreme Court), Australia (the High Court), England (the Court of Appeal) and the United States. In view of this considerable body of opinion and experience there is no reason not to embrace this new technology. However, that the Court or tribunal has the jurisdiction to employ this technology does not eliminate the need to ensure that it is used fairly. The words of Justice Estey, in the forward to Goldstein [on Video-tape and Photographic Evidence Case Law & Reference Manual (1986)] at p viii, should be heeded:
“The ends of justice may well be served by material developments which enable the assembly and analysis of evidence in a timely and economic manner so as to reveal with accuracy the truth of the relationship between the parties. The countervailing need, of course, is to ensure that the whole of this process is carried out in a way that will as well serve the interests of justice and fairness.” (Emphasis added.)
The judgment includes a list of practical matters designed to safeguard the fairness of the process.
[34] It hardly needs stating that there have been significant advances in video conferencing technology in the dozen or so years since B was decided.
[35] In Accused (CA60/97) v Attorney-General (1997) 15 CRNZ 148 an appeal was brought against an order in this Court on judicial review upholding a District Court order permitting a defector from a gang giving evidence from an undisclosed location within New Zealand at a preliminary hearing of other gang members for murder.
[36] A five judge Court of Appeal held the order did not contravene the Crimes Act 1961 s 409(2), nor s 376 entitling every accused to be present in court throughout the whole of the trial. The Court first observed (at 152) :
“We do not doubt the right of an accused person to be present during the whole of the trial is a fundamental right. It must first be noted however that the intended procedure does not envisage the accused at any time being absent from Court during trial. The Court and all participants other than the particular witness will be assembled in the usual way, in the physical presence of the accused. The argument therefore must be that because the witness is outside the courtroom, the trial (at least in part) is also being conducted outside the courtroom. We do not think the argument is sustainable.”
And then (at 153) :
“After careful consideration, we have reached the conclusion that the procedure does not contravene either the express words or the spirit of s
376(1). The accused’s right to remain in Court throughout the hearing in the presence of Judge, jury and counsel is recognised. The ability to communicate with counsel remains. The witness can be seen and heard by all concerned, and the whole of his or her evidence is given “live”. In a sense the witness has, and objectively would be seen to have, a real presence in the courtroom. The use of a screen to prevent visual contact between an accused and a witness has been approved outside the statutory regime of the Evidence Act 1908 after its enactment (R v Daniels (1993) 10
CRNZ 165 (CA); R v Moke and Lawrence [1996] 1 NZLR 263; (1995) 13
CRNZ 386 (CA)). Although there is always a danger in adopting an incremental approach to a principle – the danger being that the principle may become eroded beyond sensible recognition – for the purposes of considering the application of s 376(1) it is difficult to see any real distinction between that and the use of closed-circuit television either in the precincts of the Court, but outside the courtroom, or outside the Court precincts. All are examples of a mode of giving oral evidence, having a similarity which do not deprive the accused of the right to be present throughout trial. The consequences possibly flowing from the absence of a witness from the actual courtroom may well go to the proper exercise of any discretionary powers in a given situation, but they do not in our view demonstrate any infringement of s 376(1).”
[37] The Court of Appeal then additionally held the orders did not infringe
NZBORA, particularly ss 25 and 27.
…
[47] … {Mr Shaw] submitted, it was a fundamental tenet of criminal law that accused persons are entitled to face their accusers, meaning by that to face them in person in the same courtroom.
…
[50] The maxim on which Mr Shaw relied is one often voiced but one which is difficult to source. It may be one of those curiosities of the criminal law such as the standard of proof which have no statutory basis but which inform every criminal trial and have done so for many years. The presence and the oath of an accuser in front of an accused seems to have been part of Roman, Continental and English law from the earliest times but, in England, appears to have been soon supplanted by the commencement of the Grand Jury in which “the body of the country are the accusers” (Stephen A History of the Criminal Law of England 1883 Vol.I p 252ff). The aphorism does not rate its own index mention in such other standard texts as Holdsworth A History of English Law (1972) Radzinowicz A History of the English Criminal Law from 1750-1948, Russell on Crime (12th ed 1964) and Glanville Williams Criminal Law (1961, p 48).
[51] However, whatever may be the position in that regard, the aphorism now does no more than assert desirable contemporary practice. It is not a rule of law. Unlike the Sixth Amendment it is not included in NZBORA. In any event, it, too, is subject to the Court’s power under its inherent jurisdiction to create exceptions provided they preserve fairness. Instances include the cases earlier discussed.
…
[55] In that regard, this Court, despite the possibly atavistic comments in the US cases, accepts the views earlier cited that there is no difference in principle between having a witness present in person in the witness box giving evidence and the same person being effectively present in the courtroom with his or her image portrayed electronically. Technology nowadays is such that, even in cases where credibility is the issue, people commonly make judgments on such issues on nothing more than electronic images.
[56] Indeed, for many people, television and electronic media are their principal sources of information about the World. They make judgments, big and small, political, legal and moral, largely or solely on what they see depicted on a screen. So it would be odd if, in the 21st century, courts were to refuse to use such technology and insist on compliance with an aphorism which long pre-dates the electronic age.
[57] There therefore seems no substantial basis on which to decline the
Crown’s application in this case.
[58] It must be said, however, that this should not be taken as an invitation for similar applications to be made whenever the convenience of an overseas witness is an issue. It should still be by far the predominant practice that witnesses attend in person to give evidence from the witness box in the courtroom.
(See also Rishworth et al The New Zealand Bill of Rights (2003, pp 699-702) and
Butler and Butler The New Zealand Bill of Rights Act: A Commentary (2005, paras
23.8.17-23.8.18 p 858).
[15] It remains to be said that in the determination to ensure our criminal trial process is as fair as possible, fairness to all accused should predominate since they, of course, have most to lose. But fairness to an accused is not the only criterion.. The fairness of a criminal trial is fairness on all its bearings, including fairness to a complainant. The community, too, has a deep interest in trials being fair so that the guilt or innocence of those accused of crimes can be best assessed. That interest includes witnesses being able to give evidence in a manner which best presents the issues in a trial to the jury or judge.
[16] In this case, again recognising the comment must be based on the untested assertions earlier mentioned, the community has an interest in ensuring the complainant can give her evidence in a manner which will best place the issues in the trial before the jury for its decision.
[17] Ms Mafi’s evidence makes clear that, without the minimal interference with the normative procedure earlier discussed of a screen so she is not able to see the accused, the complainant would face significant difficulties in that respect. The court could see no reason as a matter of fair trial procedure, why that minimum departure from the norm should not be permitted. Accordingly, the order was made in exercise of the Court’s inherent jurisdiction.
………………………………..
WILLIAMS J
Solicitors and Counsel:
Crown Solicitor, Auckland
Email: [email protected]
Email: [email protected]
Shane Cassidy, P O Box 26-172 Epsom, Auckland
Email: [email protected]
Stuart Blake, P O Box 55-281 Mission Bay, Auckland
Email: [email protected]
Case Officer: Rachael[email protected]
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