Magistrates - Jurisdiction and procedure generally - The hearing - Matters of procedural fairness and propriety - Power to permit evidence by video link.

Justices Act 1959 (Tas), ss39, 85.

Evidence (Audio and Audio Visual Links) Act 1999 (Tas).

R v Dunne (1928) 21 Cr App R 176; R v Reynolds [1950] 1 KB 606, referred to.

Judgment Number: [2000] TASSC 135

1 The applicant was charged with the crime of indecent assault, contrary to the Criminal Code, s127, in that he touched the vagina and "backside" of a young girl. The complainant was the daughter of the then partner of the applicant who, at the time of trial, had reason to be hostile to the applicant. The crime was said to have occurred in December 1996, and the complaint was made in May 1999. There was cogent evidence that independent of the allegation of improper sexual conduct involving the complainant, the mother had reason to remain hostile following the end of the relationship.

2 Central to the case was the credibility of the complainant. The complainant and her mother gave evidence by means of video link. It is obvious that there had been a preliminary discussion between prosecution and defence as to the mechanics of using the particular technology. However, when the matter came on for hearing, counsel for the applicant objected to the method of reception of evidence in the following terms:

"Ah, it's a question of interpretation of the evidence Audio, Visual Links Act, ah it's my submission that this Act ah, relates to evidence being given and submissions being made, ah, between states, um ... that is ... ah, there are, part two of part three of that Act, ah, relate to um, the ... the procedure in how that can occur. Ah, the first, sorry, the part two, relates to the use of interstate Audio Links, and Audio Visual Links, in proceeding before a Tasmanian Court. And part three, relates to the use of interstate Audio Links and Audio Visual Links, in a proceeding, in a participating state, outside of Tasmania. The application of this Act, ah, Your Worship, provides ah, for this evidence and submissions to be made between states. Ah, this evidence today, is sort to be ah, given through the use of this technology, within the one state. Ah, and in my submission, the ...

What precludes me from in fact, having a video link, in this state in any event?

Ah, the Justice's Act Your Worship. Ah, Section 39. Which provides that evidence should be taking [sic] on oath, ah, in this Court."

3 The basis of the submission was misconceived, although it served to distract the learned magistrate from the issue to be determined. The learned magistrate correctly referred counsel to the Justices Rules 1976, r58G, and, following discussion, counsel articulated the objection:

" ... I would submit that it would be unfair in the circumstances, for this evidence to be given. Ah, simply on the basis that ah, this defendant is entitled to, to fully have all matters raised before the Court and to ah, have witnesses crossed examined to the full extent, um ..."

4 Counsel for the prosecution participated in but contributed little to the discourse.

5 The learned magistrate ordered that the evidence of the complainant and her mother be given by means of video link.

6 The applicant claims error on the following grounds:

"1 The learned Magistrate erred in law and/or in fact in that he so misdirected himself as to the evidence that his finding of the Complaint proved against the Applicant was unsafe and unsatisfactory in all the circumstances of the case in that:

a The [Complainant's reasons] for the delay in making the complaint is unsupported by the weight of evidence.

b There was sufficient evidence to support the proposition that the complainant, Sandra May ..., and the complainant's mother, Angela May ..., conspired to make the complaint.

2 That the learned Magistrate erred in law and in fact in giving insufficient weight to the Applicant's Record of Interview tendered on the hearing by the Prosecution.

3 That the Learned Magistrate erred in law and in fact in failing to ensure that the defendant received a fair hearing according to law in that in exercising his discretion within section 59G of the Justices Rules 1976 (as amended):

(a) He allowed the Complainant, Sandra May ..., to give evidence by audio-visual link when she was not an affected child in accordance with Section 122A of the Evidence Act 1910 in that she was seventeen years and six months at the time of the hearing.

(b) He allowed the prosecution witness, Angela May ..., to give evidence by audio-visual link without an order declaring her a special witness pursuant to Section 122I(1) of the Evidence Act 1910.

(c) He failed to conduct a preliminary hearing before the hearing of the proceeding was commenced in accordance with section 122J of the Evidence Act 1910 to give approval under section 122I for the prosecution witnesses Sandra May ... and Angela May ... to give evidence by audio-visual link."

7 The complainant, at the time of hearing, was aged 17 years, having been born in May 1982. The complainant and her mother were in Hobart for the hearing. It is not clear from whence they gave their evidence, although for the purpose of this adjudication it will be assumed that they gave evidence from a room equipped with the appropriate technology in a Court of Petty Sessions in Hobart.

8 Until the 15th Century, the modern witness was virtually unknown in jury trials and remained rare into the 16th Century. The jury fulfilled the double capacity of finders of fact and witnesses using their own knowledge and making their own enquiries before trial (3 Holdsworth, History of English Law, 3rd ed 1923). A witness who came forward on behalf of a party was susceptible to an action for maintenance of the particular case. A witness compelled by order was not so susceptible. The Statute of Elizabeth 1562 - 1563, 5 Eliz I, c 9, provided for the compulsory attendances of witnesses, it being regarded as a duty, although it appears that Crown witnesses in criminal cases were required to attend by Royal Prerogative at an earlier time (see generally 8 Wigmore, Evidence - McNaughton rev 1961 2190, 2191). The right to confront or cross-examine a witness came to be accepted. Given that non-verbal testimony was also important (8 Wigmore 789), the physical presence of the witness before the fact finder was significant and preferred to depositions taken before trial. From that time, with some exceptions, the common law required that a witness be physically present in the courtroom and be in the presence of an accused person at the time of giving testimony (R v Dunne (1928) 21 Cr App R 176, R v Reynolds [1950] 1 KB 606). Agreed matters could be placed before the tribunal by virtue of statutory provision, such as those contained in the Evidence Act 1910 ("the Act"), ss109, 113A. Further statutory provisions permitted the tendering of testimony by an absent or deceased person (the Act, ss81C, 81D, 81K, 81N), although the rights of an accused remained protected (the Act, s81C(2)). But absent statute or with limited exception such as secondary evidence of a "dying declaration", the law required the physical presence of the witness. Technology has enabled the transmission of the image and voice of a witness to be received from elsewhere and Parliaments have enacted legislation to permit such use of technology. But the human dimension of presence remains an important ingredient of the criminal trial process and convenience or economics ought not be the primary factors in any decision to use technological methodology. Its use ought be subject to consideration of fairness and the effect of presence. Parliaments have attempted to achieve a balance of competing interests in the various legislature schemes.

9 In Tasmania, Parliament has enacted legislation designed to permit vulnerable witnesses to give evidence outside of the courtroom. The legislation is an attempt to achieve a balance between the right of an accused to face the accuser whilst protecting the witness from the psychological effects of being in the same surrounds as someone whom that witness believes to have caused harm. The problem is circular in nature. The presumption of innocence requires the judicial system to adopt a procedure which recognises that a particular occurrence, often sexual in nature, is one of allegation only until found otherwise. The witness might have a difference perception and be affected by the combination of confronting the accused, believed by the witness to be perpetrator of harm, cross-examination by a stranger and the unfamiliar surrounds of a courtroom occupied by a group of people.

10 The Tasmanian Parliament attempted to meet those competing interests by amending the Act with the inclusion of PtIVA. It provided for two categories of witnesses defined as affected children and special witnesses. A child is defined by the Act, s122A, as being a person under the age of 17 years and an affected child as one in respect of whom a specified crime is alleged to have been committed. The affected child is permitted by virtue of the Act, s122G, to give evidence:

" ... in a room other than the courtroom but within the court precincts and transmitted to the courtroom by means of closed circuit television."

11 In this case, the complainant was aged 17 and was not, by definition, an "affected child". Ordinarily she would have given her evidence within the courtroom in which the hearing was being conducted.

12 Parliament also made provision for special witnesses. The Act, s122I, relevantly provides:

"122I (1) A judge may make an order declaring that a person who is giving, or is to give, evidence in the proceeding is a special witness if the judge is satisfied that -

(a) by reason of intellectual, mental or physical disability the person is, or is likely to be, unable to satisfactorily give evidence in the ordinary manner; or

(b) by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject-matter of the evidence or any other factor the court considers relevant, the person would be likely -

(ii) to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily."

13 Upon the making of an order, a special witness may give evidence:

" ... in a room other than the courtroom but within the court precincts and transmitted to the courtroom by means of closed circuit television."

I interpret the provision as referring to the same building as that in which the hearing is being conducted.

14 No application was made to the learned magistrate to have the mother of the complainant declared to be a special witness, nor did he consider any exercise of discretion in relation to the criteria stated by the Act, s122I. Instead, he proceeded on the basis of convenience and adopted the methodology prescribed by the Justices Act 1959 and Rules made in accordance with that Act. The Justices Act, s39, provides that:

"39 A witness shall be examined upon oath, or in such other manner as is prescribed or allowed by the Acts relating to giving evidence in courts of justice, and the justices may administer to witnesses the usual oath."

"(12) Where a person, including the defendant, is called to give evidence in criminal proceedings, he shall, unless the judge or other person presiding over the proceedings otherwise orders, give that evidence from the witness-box or other place provided for the purpose in the court where the proceedings are held."

15 The power of a presiding judicial officer to order otherwise is constrained. The evidence might be taken from a witness in a place other than the courtroom, such as a hospital, prison or other institution or place. But, absent legislative power, it would still be necessary for the evidence to be given in the presence of that judicial officer. Parliament has not afforded power to receive evidence in the absence of a witness by any amendment to the Justices Act. Instead, it has chosen to permit such a process by enactment of amendments to the Act, PtIVA and the Evidence (Audio and Audio Visual Links) Act 1999. The latter legislation is facilitory in nature. Its purpose is stated as:

"An Act to facilitate the taking of evidence, and the making of submissions, by audio links and audio visual links."

16 The Evidence (Audio and Audio Visual Links) Act permits the reception of evidence from a participating state upon the application of a party to a proceeding. It does not purport to apply to evidence of a witness within the state or to "exclude or limit the operation of any other law of the State ... that makes provision for the taking of evidence ..." (s4(1)), or to affect:

" ... any discretion that a Tasmanian court or a recognised court has with respect to the conduct of a proceeding."

17 Parliament has confined its statement of law to the reception of evidence other than in the presence of the relevant judicial officer, or traditional form, to the circumstances provided for by the Act, PtsIVA, VII, VIII and IX and the Evidence (Audio and Audio Visual Links) Act.

18 The Executive provided for the power of a Court of Petty Sessions to receive evidence by means of Statutory Rule. The Justices Rules 1976, provide:

"59F (1) Where a defendant is in custody and is required to appear or be brought before the justices for any purpose, the defendant may appear or be brought before the justices -

(b) by audio visual link within the meaning of the Evidence (Audio and Audio Visual Links) Act 1999; or

(c) if the justices direct, by any other means in accordance with that direction.

(2) Notwithstanding subrules (1)(b) and (c), the justices may direct that the defendant be brought before them in person.

59G The justices may determine to take evidence or receive submissions in relation to any proceedings by -

(a) audio link, or audio visual link, within the meaning of the Evidence (Audio and Audio Visual Links) Act 1999; or

19 The Rules permitted the reception of evidence by means of a technological method. They did not purport to alter the existing substantive laws of evidence or modify the common law position that an accused is entitled to confront a witness or that a judicial officer or jury be present when the witness gives evidence. Rule 59G refers to the technological method of transmission of evidence by reference to the methodology defined in another statute. It does not purport to extend the substantive basis on which evidence can be received.

20 The use of the Justices Rules 1976, r56G, could never relieve a judicial officer, in dealing with a potential special witness, of the obligations to exercise discretion within the criteria stated by the Act, s122I. The use of the Rules could never be used as a matter of convenience to permit any witness to give evidence by means of audio or audio visual link to a tribunal of fact without the consent of all parties to the proceeding. Recourse to the Rule could never obviate the statutory requirement to comply with the provisions of the Act, s122G(2), or avoid consideration of the criteria imposed by s122I. Rule 59G(b) could never be used by a court (absent specific statutory enactment by Parliament) to act upon a form of communication not susceptible to cross-examination on trial.

21 There remains the question of whether the Justices Act 1959, s39, or the Act, s85, permit the enactment of r59G with the effect contended for by the respondent. The Justices Act, ss144, 145, do not permit the making of regulations in relation to the laws of evidence. Section 39 is confined to the form of oath or basis on which the witness pledges his or her word to make honest testimony. The Act, s85, permits a change of venue for reception of evidence. Neither enactment permits the reception of evidence in the absence of a judicial officer and representative of a person charged with a crime or offence. Parliament has confined that procedure to special circumstances as defined by the Act, PtIVA, and the Evidence (Audio and Visual Links) Act.

22 Nothing in this judgment ought be taken as impacting on the rights of courts or tribunals to determine procedural matters such as formal remands and matters encompassed by the Justices Act, ss144(cd)(d), 145, or the reception of evidence taken with the consent of the parties (the Act, s109, namely the evidence taken by audio or audio video link). In civil cases the court is required to make a decision on the basis of the evidence placed before it by the parties. In a criminal case the court has an overriding obligation to ensure that there is a fair trial conducted according to law. But the requirement of fairness of trial ought not preclude the reception of evidence by a technological method agreed upon by the parties. But the central tenet remains. A person charged with criminal conduct is entitled to confront in person the accusers, whilst the criminal justice system maintains the methodology of oral testimony. Parliament might modify the process but, accepting the needs of young or vulnerable persons by a special process of exemption, there remains a need that a person, subject to sanction, be enabled to confront the accuser. Technology or convenience ought not supplant the human dimension, unless Parliament determines otherwise.

23 The Rule is valid in so far as it facilitates the method of reception of evidence. It permits the reception of evidence by means of the Act, PtIVA, and the Evidence (Audio and Audio Visual Links) Act, the dealing with procedural matters, and evidence received by a means agreed by the parties. It does not supplant (absent statement by Parliament) the existing method of the judicial process of requiring that evidence be given in person before the relevant court or tribunal.

24 In this case, counsel for the appellant objected to the method of the reception of evidence. It could be said that the objection was of little import in that her evidence was formal in nature. But the nature of the defence case was that the mother of the complainant had, for reasons of her own, caused the complainant to give a false account of the conduct of the appellant. The conduct of the cross-examination was to that effect. The fact that the evidence of the mother was discounted does not alter the problems associated with the giving of evidence by means of video link. Accepting that the evidence of the complainant was accepted, the method of reception of evidence by the mother might have affected the weight given to her evidence. The defence was not attempting to weaken her evidence-in-chief. Rather, it was attempting to enhance her import and destroy her credibility. Such is a not unusual methodology in any allegation where the accusation (and ensuing narrative) came from another. Failure to have her confront the accused was central to the defence case. The dismissal by the learned magistrate of the import of her evidence does not resolve the problem. The appellant was attempting to show that the allegation was by reason of her hostility. The fact that the question was not put openly to the complainant does not resolve the question of the method by which the mother gave evidence. Disbelief of her evidence-in-chief (which was formal in nature) did not answer the claim of conspiracy. A question such as that raised by the defence could be resolved only by confrontation between the witness and counsel for the accused.

25 It follows that ground 3 of the motion to review ought succeed. It is not necessary to consider the remaining grounds.

26 The appeal will be upheld and the conviction recorded by the learned magistrate quashed. I will hear counsel in relation to the disposition of this matter.