Brodie v Streeter [2003] ACTSC 88 (5 November 2003)

Last Updated: 24 November 2003

WILLIAM ALEXANDER BRODIE v MICHAEL SCOT STREETER

[2003] ACTSC 88 (5 November 2003)

EVIDENCE - decision to allow complainant to give evidence by closed circuit television - whether was "more convenient" according to s 30(2)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) - whether was "unfair" to the accused according to s 30(2)(c) - whether unduly infringed upon general right of accused to confront accuser where issues of credibility involved - alleged subjective fear of accused would affect quality of evidence given in open court - complainant was wife of accused - alleged common assault.

PRACTICE AND PROCEDURE - whether determination of subjective fear held by complainant at committal stage of proceedings gave rise to prejudice in judge alone trial - determination of credit made for purpose of determining method of delivery of evidence - whether necessarily involves pre-judgment or bias - issue of bias not dealt with - that pre-judgment is necessarily involved untenable.

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 4, 6, 30(1), 30(2)(a)(b)(c), 30(3)

Evidence Act 1995 (Cth)

Crimes Act 1914 (Cth), s 50EA

R v Ngo [2003] NSWCCA 82

R v Savvas (1989) 43 A Crim R 331

Re Mr C (1993) 67 A Crim R 562

R v Smellie (1919) 14 Cr App Rep 128

R v Taylor (1994) TLR 484 (CA; 17 August 1994)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 53 of 2003

Judge: Higgins CJ

Supreme Court of the ACT

Date: 5 November 2003

IN THE SUPREME COURT OF THE )

) No. SCA 53 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: WILLIAM ALEXANDER BRODIE

Appellant

AND: MICHAEL SCOT STREETER

Defendant

ORDER

Judge: Higgins CJ

Date: 5 November 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal against a decision of Magistrate Symons made at the committal stage of proceedings due to commence before her, now listed for 17 and 18 November directing that, the evidence of the complainant named in the charge be taken before the Court by closed circuit television (CCTV) rather than by personal testimony directly given in open court.

2. The application before her Worship was made pursuant to s 30 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT Evidence (MP) Act), an enactment of the ACT Legislative Assembly.

3. That Act, of course, has effect only insofar as it is not inconsistent with the Evidence Act 1995 (Cth) or the Crimes Act 1914 (Cth). The Crimes Act 1914 (Cth) provides expressly for video link evidence (s 50EA) but that provision is limited to child sex tourism cases. It was not, however, submitted to me that any provision of the Evidence Act 1995 (Cth) would be inconsistent with the ACT Evidence (MP) Act.

4. Section 30 of that latter Act provides -

(1) Subject to any Act or rules of court, a Territory court may, on the application of a party to a proceeding before it or on its own initiative, direct that a person, whether or not a party to the proceeding, appear before, or give evidence or make a submission to, the court by audiovisual link or audio link from a place in the ACT that is outside the courtroom or other place where the court is sitting.

(2) The court may make the direction only if satisfied that -

(a) the necessary facilities are available or can reasonably be made available; and

(b) the evidence or submission can more conveniently be given or made from the place that is outside the courtroom or other place where the court is sitting; and

(c) the making of the direction is not unfair to any party opposing the making of the direction.

(3) The court may at any time vary or revoke a direction made under this division, either on the application of a party to the proceeding or its own initiative.

5. Under s 6 of the ACT Evidence (MP) Act, the giving of evidence by closed circuit television is mandatory (unless the court otherwise orders) in the case of a "prescribed witness", which is defined by s 4 as being either a child or an alleged victim of sexual assault. This witness is, it is agreed, not a "prescribed witness". It follows that the source of legislative authority for the learned Magistrate's direction is s 30 (supra).

6. So far as s 30(2) is concerned, there is no difficulty anticipated from s 30(2)(a). Facilities are, absent unlikely technical difficulties, available.

7. The appellant submits that neither s 30(2)(b) nor (c) is satisfied.

"MORE CONVENIENT"

8. The respondent had based his application on two grounds. First, that the witness had a hearing impairment. Second, that, by reason of the prior relationship between the parties, the witness felt fearful of and intimidated by the appellant and would, as a result, have difficulty concentrating on the evidence she otherwise would give.

9. The appellant, opposing the application, pointed out that the court itself had facilities to aid the hearing impaired. As to the second ground, Mr Whybrow, for the appellant, contended that "more convenient" related to the adducing of the evidence not the convenience of the witness. For example, it may be "more convenient" to give evidence remotely by video link if the witness could not, without undue difficulty and expense, be brought to the courtroom. A prisoner at a remand centre, or a medical witness in a different city were examples given.

10. That interpretation is consistent with the objectives stated by the then Attorney-General, Mr Humphries, on 18 February 1999, introducing a Bill (inter alia) to enact s 30 (supra).

11. However, the appellant submits, also, that it is not "more convenient" if, to accede to the request would result in "any unfairness" to the opposing party.

12. That unnecessarily conflates ss 30(2)(b) and (c). The latter expressly forbids the making of such an order if to make it would be unfair to the opposing party. That is irrespective of convenience.

13. The learned Magistrate rejected the ground relying on hearing difficulties. She was satisfied that those difficulties could be accommodated. Ironically, the courtroom so fitted with a "hearing loop" does not also have audio-visual facilities. Thus, if the witness returned to the courtroom after giving her evidence remotely, she would have difficulty hearing the proceedings. The Magistrate acknowledged that, given the witness' professed state of fear of the appellant, it was unlikely that the witness would choose to return to the courtroom so that was not a practical difficulty.

14. Her Worship adopted a wide interpretation of "more convenient". Clearly, the witness in this case was not more conveniently located in a remote witness room as opposed to being located in the courtroom. She could equally conveniently access either.

15. The dictionary definition, adopted by her Worship, is in terms of suitability - being "not troublesome" to a person. It seems to me that "more convenient" is an expression used in a wide sense to include the convenience of the court, the parties and the witness in question.

16. In the present case, it was, in my view, open to her Worship, on the evidence, to find that the witness' stated aversion to the appellant, whether reasonably based or not, made it "more convenient" for her to give the evidence remotely.

17. It was also more convenient for the court to have the evidence given free from the stated inhibitions troubling the witness. Indeed, to an extent, it would favour the appellant that, if the witness' evidence was nevertheless unsatisfactory, that could not be attributed to the inhibiting presence of the appellant.

`NOT UNFAIR"

18. Her Worship correctly appreciated that merely to find s 30(2)(b) satisfied did not entitle her to make the order in question. She had to be satisfied that it was "not unfair" to the appellant to give such a direction as sought.

19. She was referred to and noted a statement made by the New South Wales Court of Criminal Appeal in R v Ngo [2003] NSWCCA 82. It was accepted in that case that, as a general rule, the Crown case should be presented in the presence and hearing of the accused. An accused person is entitled to confront his or her accusers. The relevant legislation in New South Wales was not materially different from s 30 of the ACT Evidence (MP) Act. Counsel for the accused in R v Ngo (supra) had submitted that to breach this rule was "unfair" to the accused.

20. The departure was the greater in Ngo's case because the identity of the witnesses was concealed from him, though the jury did not know that. It was contended, therefore, that the appellant was prevented, if he recognised the witnesses in question, from instructing his counsel as to matters he might know affecting their credibility.

21. The Court (Stein JA, Sully and Levine JJ) noted that, even absent such legislation, courts have qualified the "right of confrontation" to protect vulnerable witnesses and permit their evidence to be given. For example, as their Honours noted, pseudonyms have been used for informers - (R v Savvas (1989) 43 A Crim R 331; Re Mr C (1993) 67 A Crim R 562.

22. In R v Smellie (1919) 14 Cr App Rep 128, the Court of Criminal Appeal (UK) held that it was permissible to remove an accused from the presence of a witness to "secure the ends of justice" if otherwise it is considered that the presence of the accused will intimidate the witness.

23. In R v Taylor (1994) TLR 484 (CA; 17 August 1994), a screen was used to shield the witness from seeing the accused. The jury could see the witness on a TV monitor. The concern was the same as in Ngo.

24. Thus, three of the five factors considered relevant were not applicable to the present case, for reasons I will come to in a moment.

25. Those factors, as identified in Ngo's case were (see [87]) -

The Court held that the decision was pre-eminently one for the trial judge's discretion. Five factors were seen as relevant to be considered:

(i) There must be real grounds for fear of the consequences if the evidence is given and the identity of the witness revealed.

(ii) The evidence must be sufficiently relevant to make it unfair to the Crown to make it proceed without it. The creditworthiness of the witness could be relevant to this.

(iii) The Court must be satisfied that the creditworthiness of the witness has been investigated and disclosed.

(iv) The Court must be satisfied that there would be no undue prejudice to the accused, although some prejudice is inevitable even if it was only the qualification placed on the right to confront a witness as accuser.

(v) The Court could balance the need for protection of the witness against unfairness to the accused.

26. In many other cases referred to, personal confrontation between the defendant and the witness was denied without a finding that the right of the accused to a fair trial had been impermissibly compromised.

27. It is apparent that the subject legislation was not intended fundamentally to alter this balance.

28. The right of the accused to face his or her accuser needs therefore to be balanced against the need to enable a complainant to give evidence free from the effects that the presence of the accused would or might have.

29. In this case, the appellant knew the complainant well. He would be entitled to see her giving her evidence, albeit on a video screen. He was in a position fully to instruct his counsel, if anything was known by him about her that might affect her credibility. Further, if something transpired in the course of her evidence, a gesture or facial expression that might be relevant, the appellant could see it and instruct counsel concerning it.

30. His counsel would not be inhibited in cross-examination. The only prejudice is the lack of personal presence of the two persons in the same room.

31. Given that the proceedings are in the form of a committal, it cannot be asserted that a jury has been prejudiced or deprived of any reasonable opportunity to assess the credibility of the witness. Whether or not, if the matter proceeded before a jury, the same course would be taken is not relevant at this point.

32. It was objected that the course taken by the Magistrate has precluded the appellant from choosing to consent to summary trial. Hence, there is real prejudice.

33. As I understand this submission, it was based on the proposition that, to determine this application, her Worship heard evidence from the complainant that the latter was in fear of the appellant and, hence, could not give properly coherent evidence in his presence.

34. Her Worship was satisfied that the complainant's evidence that she was fearful of and intimidated by the appellant was "indicative of the level of her fear and intimidation".

35. As her Worship expressed it -

She must fairly be given the opportunity to present her evidence to the best of her ability and not in an environment where she is intimidated and the quality of her evidence is diminished.

36. Her Worship then turned to the so-called five factors referred to in Ngo (supra). These were factors favouring or not concealment of the identity of witnesses and her Worship, correctly in my view, noted that -

The complainant's evidence is sufficiently relevant to make it unfair to the Crown (sic) to proceed without it or to proceed with it where her credit worthiness is affected by her fear and intimidation.

37. She was satisfied also that the Crown, by that I take her Worship to refer to the DPP, and the informant would have made enquiries as to the credit worthiness of the complainant.

38. There was no evidence on this point. It is in my view, of importance only in the context of the usual duty of a prosecutor to disclose matters known to the prosecution and to the witnesses' discredit. For example, this might include a criminal record or psychiatric report.

39. In any event, in the present case, the appellant was in as good a position as anyone else to know of such information.

40. As to factor four, her Worship said -

I'm satisfied that there is no undue prejudice to the defendant, although I do accept that some is inevitable, even if only (sic - "in") the qualification placed on his right to confront the complainant as his accuser.

41. In balancing the need for protection of the witness against unfairness to the accused (factor five) her Worship concluded -

I see no prejudice to the accused in the arrangement sought, as I accept the complainant's evidence and find that it is likely that justice will not, in the circumstances of this case, be done to her and her evidence if she is unable to give her evidence properly.

42. I can see no error in the manner in which, or the reasoning by which, her Worship concluded that the direction sought should be given.

43. Indeed, I consider that, in the circumstances, it was the correct ruling.

44. However, there remains the issue which was raised at the hearing of the appeal by Mr Whybrow.

45. That is that, having accepted the complainant's evidence, her Worship has, in effect, pre-judged the issue of the appellant's guilt insofar as that depends, as it must, on the credibility of the complainant.

46. Of course, on a voir dire or, as here, an interlocutory application, it is not uncommon for findings of fact to be made at least at a prima facie level. In a jury trial, the jury is excluded from that process and cannot be prejudiced by it.

47. In a judge alone trial, a trial judge will recognise that a factual finding on the voir dire is not to the standard of beyond reasonable doubt and may be contradicted by other evidence given at the trial.

48. In any event, there was no choice before her Worship but to proceed as she did. It is premature to determine on this appeal, merely questioning the direction, whether her Worship is to be disqualified for bias so that a choice of committal or summary hearing is compromised. It is not, in my view, necessarily so.

49. I do not consider such a conclusion to follow from the need to find that there was a credible reason, at the stage the proceedings had reached, to give the direction sought.

50. To say that such an exercise must lead to disqualification in that it renders the relevant judicial officer disqualified is untenable. Judges and magistrates are quite capable of disregarding such preliminary findings and coming to a balanced view on the whole of the evidence as later presented. Such would I consider, be the opinion of the dispassionate and objective lay observer.

51. I dismiss the appeal.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 5 November 2003

Counsel for the Appellant: Mr S Whybrow

Solicitor for the Appellant: Norton White Lawyers

Counsel for the Defendant: Mr C Todd

Solicitor for the Defendant: ACT Director of Public Prosecutions

Date of hearing: 2 October 2003

Date of judgment: 5 November 2003