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Court of Criminal Appeal 9 August 2013

JD v R

[2013] NSWCCA 198

Sexual offences
CRIMINAL LAW RULING REFUSING TEMPORARY STAY OF TRIAL LEAVE REFUSED

Citation: JD v R [2013] NSWCCA 198
Court: Court of Criminal Appeal, New South Wales
Date: 9 August 2013
Judge(s): Latham J, Price J, R A Hulme J

Background

The applicant faced charges of sexual assault of a child between 10 and 14 years of age, sexual intercourse without consent, and aggravated indecent assault, arising from conduct alleged to have occurred between late 2003 and late 2005. The charges were not reported to police until November 2011, and a trial date at Lismore District Court was set for 12 August 2013.

The complainant, by then aged 20 and residing in South Australia, was 30 weeks pregnant at the time the trial was scheduled. A medical certificate confirmed she had been advised against air travel, and her due date was 11 September 2013. The Crown applied for her to give evidence by audio-visual link from South Australia under the Evidence (Audio and Audio Visual Links) Act 1998.

The applicant opposed the audio-visual link arrangement and applied, on two occasions before the trial judge, for a temporary stay of the trial. After both applications were refused, the applicant sought leave to appeal against those interlocutory rulings in the Court of Criminal Appeal, with the appeal heard on 9 August 2013, three days before the trial was due to begin.

  • Whether the trial judge erred in refusing to grant a temporary stay of the trial
  • Whether the trial judge misapplied the test under s 7(2)(c) of the Evidence (Audio and Audio Visual Links) Act 1998, which requires a direction for remote evidence to be refused if it would be unfair to the opposing party
  • Whether the complainant's advanced pregnancy would cause unfair prejudice to the applicant, including through jury sympathy, difficulty in cross-examination, and the logistics of tendering documents

Decision

The Court of Criminal Appeal refused leave to appeal. It found no error in the trial judge's exercise of discretion or in the application of the relevant test under s 7(2)(c) of the Act.

The Court rejected the submission that the complainant's pregnancy would generate unfair prejudice to the applicant. It noted there was no evidence that the complainant was in a vulnerable condition or at risk of early labour. It also observed that because the complainant would give evidence by audio-visual link, the jury need not even be aware of her pregnancy, as she could be viewed in a manner that did not disclose her condition.

On the concern about cross-examining a pregnant woman, the Court pointed to s 41 of the Evidence Act 1995, which empowers a trial judge to reject questions that are harassing, oppressive, or otherwise improper, and noted that Bar Rules replicate similar obligations. The Court observed that experienced counsel could cross-examine a pregnant complainant effectively without acting improperly, and that the complainant's pregnancy had no relationship to the issues at trial.

Regarding the logistics of showing the complainant documents during cross-examination, the Court noted that the applicant had itself acknowledged it was feasible to send a sealed folder of copy documents to South Australia for production to the complainant by a court official at the relevant time. Section 20E of the Act expressly provides a mechanism for putting documents to a witness giving evidence remotely. The Court found no forensic advantage would be lost by following that procedure.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge has broad powers to manage the trial process, and that the prospect of jury sympathy toward a pregnant complainant is not, of itself, a basis for staying a trial or refusing an audio-visual link direction.
  • Under s 7(2)(c) of the Evidence (Audio and Audio Visual Links) Act 1998, a court must refuse a direction for remote evidence only where the opposing party satisfies it that the direction would be unfair to that party; vague assertions of prejudice, unsupported by evidence, will not meet that threshold.
  • Where a complainant gives evidence by audio-visual link, the jury may not be aware of any personal circumstances (such as pregnancy) that would otherwise give rise to sympathy, reducing the weight of that prejudice argument significantly.
  • Section 20E of the Evidence (Audio and Audio Visual Links) Act 1998 provides a workable mechanism for putting documents to a remotely located witness, and an applicant's acknowledgment that a sealed folder arrangement is feasible will undermine submissions that cross-examination logistics make remote evidence impracticable.
  • No error was established in the trial judge's refusal to stay the proceedings on the basis of the applicant's solicitor's health, the complainant's pregnancy, or the existence of another trial that could fill the court's list.

Legislation and Cases Referenced

Legislation
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 7, 20A, 20E
- Evidence Act 1995 (NSW), s 41
- Criminal Appeal Act 1912 (NSW), s 5F

Cases
- MG v R [2007] NSWCCA 57; 69 NSWLR 57
- Jago v District Court (NSW) (1989) 168 CLR 23
- Subramaniam v R (2004) 211 ALR 1