SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: / R v BLCitation: / [2016] ACTSC 209
Hearing Dates: / 26 July and 2 August 2016
Decision Date: / 2 and 8 August 2016
Before: / Refshauge J
Decision: / Made on 2 August 2016
1. The audiovisual recording of the Evidence-in-Chief Interview of DL on 25 June 2015 be edited to remove the struck out portions in the transcript annexed (Annexure A) to the affidavit of Jane Campbell, sworn 21July 2016 being part of the answer to question 24, questions 23, 43-45, 47-50, 171-198, 200-201 and 254-349 and the answer to those questions.
2. A member of the Australian Federal Police be permitted to edit the Evidence in Chief Interview of DL on 25June 2015 in accordance with Order 1.
Made on 8 August 2016
1. DL be permitted to be accompanied by the dog Tuppence when giving her evidence.
2. Subject to any contrary direction by the judge presiding at the pre-trial hearing, DL may wear a cap or visor when giving evidence.
3. The question of whether DL is permitted to use “fiddle toys” when giving evidence is referred to the judge presiding at the pre-trial hearing.
Catchwords: / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Evidence – recorded evidence – police interview – editing
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Evidence – special arrangements for witness – child witness – witness with disability – sexual offence proceedings – presence of assistance dog – dog to reduce anxiety and sensory overload – dog in training – no accreditation scheme for assistance animals required by legislation – fair trial – reduce strain on witness giving evidence – possible prejudice – evoke sympathy of jury – distract jury – jury directions – evidence recorded – recording can be edited before trial
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Evidence – special arrangements for witness – witness with disability – sensitivity to glare – wear cap or visor – fair trial – importance of seeing witness’ eyes – clear sight of face necessary
Legislation Cited: / Disability Discrimination Act 1992 (Cth), ss 8(1), 9(2), 9(2)(c), 23
Domestic Animals Act 2000 (ACT), ss 104
Evidence Act 2011 (ACT), ss41, 55
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss38E, 38E(1), 40F, 40M, 40R, 40S, 43(4), 44, 55, 101, Div4.2.2A, 4.2.2B
Court Procedures Rules 2006 (ACT), r 6906
Cases Cited: / Attorney-General’s Reference (No 3 of 1999) [2001] 2AC91
Elson v Ayton (2010) 241 FLR 178
Forest v Queensland Health (2007) 161FCR 152
Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207
R v D(R) (Unreported, Blackfriars Crown Court) 16September 2013)
RvForbes [2001] 1 AC 473
R v Gorman [2009] ACTSC 7
R v H [2004] 2 AC 134
R v Macfarlane; Ex parte O’Flanagan andKelly (1923) 32CLR 518
R v Smith [1994] Crim LR 458
Scheele v Watson [2012] ACTSC 196
Smellie (1919) 14 Cr App R 128
West (1990) 51 A Crim R 317
Texts Cited: / Judicial Commission ofNewSouth Wales, Criminal Trial Courts Bench Book (Judicial Commission of New South Wales, 2007)
MJones and T Crocker, Responding to Sexual Assault: the challenge of change (ACTDPP and AFP, Canberra 2005)
RPattendon, Judicial Discretion and Criminal Litigation (Clarendon Press, 2nded, 1990)
Parties: / The Queen (Crown)
BL (Accused)
Representation: / Counsel
Ms S Gul (26 July 2016) (Crown)
Ms J Campbell (2 August 2016) (The Crown)
Mrs A Evans (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown)
Evans Family Lawyers (Accused)
File Number: / SCC 43 of 2016
REFSHAUGE J:
1. BL is accused of two counts of committing an act of indecency on his daughter, the complainant, in 2009 and also of assaulting her occasioning her actual bodily harm in 2006. The trial of these charges has not yet been listed but a pre-trial hearing under Div4.2.2B of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) has been listed for hearing on 11 August 2016.
2. I have been asked to consider two applications by the Crown. The first relates to recorded evidence relevant to the pre-trial hearing and the second relates to special arrangements being sought for the complainant at the pre-trial hearing.
Recorded evidence
3. As is now common in such proceedings, the evidence of the complainant who, at the time of the alleged offences, was under the age of ten but is now fifteen, will, in part, be presented by the playing of an audio-visual recording of an interview with her conducted by appropriately qualified police officers in accordance with Div 4.2.2A of the Evidence (Miscellaneous Provisions) Act (the police interview).
4. Under s 40F of that Act, the audio-visual recording of the police interview is admissible as the complainant’s evidence-in-chief. The court, however, has power to refuse to admit all or part of it. Further, s 40M of the Act makes it an offence to erase any part of the tape. Thus, where there is some inadmissible evidence in the recording, it is preferable that it be edited prior to being played but it can only be edited with leave of the court.
5. Clearly, the accused is not present at the police interview and so there will, at that time, be no objection made to any answers given by the complainant, even if they are inadmissible in any subsequent trial. This is not because the police are seeking to adduce such inadmissible evidence, but because, particularly at that stage of the investigation, the police officers cannot necessarily be expected to know what may be admissible and what may not, especially as the precise terms of the trial, indeed, at that stage, even the precise charges that may be laid, may not be clear.
6. As is also common, a transcript of the police interview has been prepared and lawyers for both the Crown and the accused have had an opportunity to consider it. As a result, as not infrequently happens, the Court is asked to grant leave to have the recording of the interview edited to remove parts of it that are not admissible at the trial.
7. It is desirable, though not entirely necessary, that this be done prior to the pre-trial hearing as, under s40S of the Evidence (Miscellaneous Provisions) Act, the recording may be played at the pre-trial hearing before the complainant gives any further evidence or is cross-examined. Though this is not mandated. The recording of the police interview, edited or not and played at the pre-trial hearing or not, is, nevertheless, admissible at trial.
8. The only problem with the recording of the police interview not being played at the pre-trial hearing is that the presiding judge will not have seen and heard it. This may restrict the response that can be made to any objections to any questions asked at the pre-trial hearing as a result. This will be ameliorated by the availability of a transcript, but if there are any issues about the complainant’s demeanour or any conduct or actions during the police interview, it will be a little more difficult to deal with them.
9. In this case, some answers were given by the complainant in the police interview which disclosed events not the subject of the present charges and which are clearly not relevant to the present indictment and the Crown does not propose to rely on them for the trial.
10. Accordingly, I have been asked to make the following orders:
(a) that the audio-visual recording of the interview of the complainant on 25June 2015, with certain prescribed persons at the Winchester Police Centre, be edited to remove certain portions of the interview that are shown as struck out in the transcript of the recording annexed to the affidavit of Jane Campbell sworn 21July 2016;
(b) a member of the Australian Federal Police be permitted to edit that recording to remove the material referred to in order (a).
11. The reasons expressed for the editing as noted above (at [9]) mean that those portions of the police interview could not rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in these proceedings.
12. Thus, that evidence is not relevant evidence within the meaning of s 55 of the Evidence Act 2011 (ACT). As a result, it would not be admissible in the trial.
13. The accused consented to the editing as proposed and, accordingly, I made the orders sought. These are my reasons.
Application for special arrangements
14. Since 2003, special arrangements have been made by amendment to the Evidence (Miscellaneous Provisions) Act to ameliorate the stress placed on children and vulnerable witnesses by having to give evidence. These arrangements were further extended in 2008. They include the recording and admission of the certain police interview referred to above (at [3]) and the giving and recording of certain evidence in proceedings concerning sexual and personal violence offences earlier than the trial, which is known as a pre-trial hearing.
15. The holding and conduct of a pre-trial hearing, where evidence is given and recorded before the trial, is regulated by Div 4.2.2B of the Evidence (Miscellaneous Provisions) Act.
16. Under the arrangements for the pre-trial hearing, the complainant (and other specified witnesses) in sexual offence proceedings, such as these proceedings, may give evidence from a remote room that is not the court room, though, for certain purposes, it is deemed to be the court room. See s 43(4) of the Act.
17. Under s 40R of the Evidence (Miscellaneous Provisions) Act, only certain persons are permitted to be present in the court room when there is a pre-trial hearing. The court, however, can permit anyone whom it considers appropriate to be present in the court room.
18. While the remote room is, while the witness (including the complainant) is giving evidence, taken to be part of the courtroom, it is under the control of the judge. The judge can decide, under s 44 of the Evidence (Miscellaneous Provisions) Act, to make orders about who can be present in the remote room and who may not be present. Under s 38E or s 101 of the Act, the court must, on application by a party, order that a witness in certain specified proceedings (s38E(1)) or a child or a witness with a disability (s 101) be permitted to have within the sight of the witness a person, known as a support person, in the remote room while the witness is giving evidence.
19. There are, however, no other express provisions for anything else to be present in or excluded from the remote room.
20. I have now been asked to make the following orders:
1. That the assistance dog, named Tuppence, be permitted to be in the remote room with the complainant when she gives evidence;
2. That the complainant be permitted to have the assistance dog, named Tuppence, sit on her lap or have other physical contact with the dog while she gives evidence;
3. The complainant is permitted to hold objects, such as fiddle toys, when she gives evidence.
4. The complainant be permitted to wear a visor or cap when giving evidence.
Evidence on the application
20. The application was supported by an affidavit of the prosecutor in the office of the ACTDirector of Public Prosecutions (the Crown’s affidavit) and oral evidence of the person training Tuppence. I read that affidavit.
21. Certain documents were admitted into evidence and BL made an affidavit (MrBL’saffidavit), which I also read.
22. From that material, I make the following findings.
23. The complainant has been diagnosed with High Functioning Autism and Generalised Anxiety Disorder. I accept that this is properly described as a disability of which I can take cognizance. She presently has assistance from the dog, Tuppence, but the dog is in training although it has not yet been certified in any way as an assistance dog.
24. Tuppence and fiddle toys are used by the complainant to reduce anxiety and sensory overload which are likely to be experienced by her when giving evidence.
25. The complainant is also very sensitive to external stimuli and wears a visor or cap to reduce the glare of strong lights which are likely to be experienced by her when giving evidence in the remote room because of the need for visibility in that room.
26. Dr Claire Pattison, Consultant Child and Adolescent Psychiatrist, initially saw the complainant in 2010 but re-engaged with her in 2013 and has seen her more frequently since then.
27. She reported, and I accept, that:
[the complainant] struggles to manage her anxiety and frequently becomes overwhelmed. In this instance she shuts down and cannot function at all. She cannot think clearly and process information. She is also very sensitive to external stimulus such as noises. Again she is easily overloaded.
I am concerned that in any court proceedings she will become excessively anxious and not be able to think clearly and answer questions. She will have to be very supported, given time to think through her answers and not put under undue pressure. She usually needs her Mother to support her in my sessions but after some years is being able to talk.
28. Clearly, if the complainant were to “shut down” and not function, then the proper evidence necessary for the court proceedings would not be able to be adduced. That would be contrary to the interests of justice.
29. Mr Robert Stirling, who is training Tuppence, said in a written report annexed to the Crown’s affidavit, and I find:
An Assistance Dog is a permanent companion to a person with a disability, trained specifically to assist and enable that person to gain greater independence. [The complainant’s] dog is assisting her to counter the effects of, and cope with, anxiety, providing her greater freedom, reduced reliance on caregivers and a tool to overcome the social isolation she has in part as a result of the difficulties she experiences from having an Autism Spectrum Disorder (ASD).