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At the trial of the accused, the trial judge ordered that the complainants’ evidence be pre-recorded with a direction that the accused (who was in hospital) be present by telephone. The issue that arose on appeal was whether s 21A(4) Evidence Act 1977 (which requires provision to be made for a defendant to “see and hear” the special witness giving evidence) applied to the pre-recording of the complainant’s evidence. The Court of Appeal held that it did not. The Court also raised, in obiter dicta, the potential application of s 617(1) Criminal Code 1899, although expressed that it was not appropriate, without the benefit of legal argument, to express a view on the provision. Other grounds of appeal were raised that are the subject of this note.
Morrison and Mullins JJA and Crow J
10 December 2021
The appellant was convicted of five counts of sexual offending against two brothers, R and J. .
The appellant appealed against his convictions on the ground that the learned trial judge erred in law by ordering the proceedings continue in the absence of the physical presence of the appellant so that he was excluded from the court and unable to see the witnesses, in breach of s 21A(4) Evidence Act 1977 (“the EA”). .
The circumstances which gave rise to this ground of appeal were as follows. The appellant’s trial was due to commence before Everson DCJ with a jury on 10 December 2018. Before the jury was empanelled, the prosecution applied, and orders were made, for the complainants to be deemed special witnesses. . Additional orders were made that:
- The special witnesses give evidence in a room other than that in which the court is sitting, and from which all persons other than those specified by the court are excluded;
- That a video recording of the evidence of [the special witnesses] be made pursuant to s 21A(2)(e) of the EA; and
- Copies of the recording be made available to the parties in the usual manner so as to facilitate admissibility under the provisions of s 21A(6) EA should that prove necessary upon any retrial of the matter. .
On 11 December 2018, the appellant was hospitalised and the jury was discharged. Everson DCJ ordered that the balance of the evidence of R and all of the evidence of J be pre-recorded. .
Arrangements were made for the hospitalised defendant to telephone the court, so he could hear the prerecording. To eliminate the risk of prejudice, the trial judge proposed to adjourn court at the conclusion of the evidence-in-chief of each complainant to enable the appellant to give instructions to his legal representatives confidentially and proposed that cross-examination would only proceed after the appellant had given instructions to his legal representatives. .
Defence counsel at trial objected (unsuccessfully) to this course arguing that s 617 Criminal Code 1899 (“Code”) requires that a trial take place while the accused is present in the courtroom. No submission was made that any specific prejudice would arise from the appellant being present only on the telephone. The trial judge ruled that s 617 Code did not apply as the hearing was not a “trial”. The trial judge could see no need for the appellant to be present when there was no jury. .
The pre-recorded evidence proceeded as proposed. . The recordings were ultimately played before the jury in the appellant’s trial. .
The issue was whether s 21A(4) EA applied to the pre-recording of the complainant’s evidence. . Relevantly, s 21A(4) of the Act provides:
“Subject to any order made pursuant to subsection (5), in any criminal proceeding an order shall not be made pursuant to subsection (2)(a), (b) or (c) excluding the person charged from the room in which a special witness is giving evidence unless provision is made, by means of an electronic device or otherwise, for that person to see and hear the special witness while the special witness is giving evidence.”
Justices Morrison, Mullins and Crow held, in a judgment of the Court, that it did not. . Their Honours reasoned that as follows:
- There is a distinction drawn in some parts of s 21A between the room from which a special witness gives evidence (where the special witness does not give evidence in the courtroom) and the courtroom. .
- The effect of the direction that the appellant be present by telephone was that the trial judge exercised the power to make an order under s 21A(2)(a) EA which had the effect of excluding the appellant from the room in which the court was sitting, except to the extent that the appellant could hear on the telephone. .
- Section 21A(4) applies only when an order is made pursuant to s 21A(2)(a), (b) or (c) that excludes the defendant from the room in which the special witness is giving evidence. .
- It does not apply to orders concerning the defendant’s presence in the courtroom in which the court is sitting, while the evidence of the complainant is given in another room.
“Section 21A(4) is apt to apply to the giving of evidence by a special witness in the courtroom where arrangements are made for the defendant outside the courtroom to watch and hear the giving of evidence by the special witness by means of an electronic device.” .
Commentary on s 617 Code
In obiter dicta (the parties not having addressed this point on appeal), the Court commented on the applicability of s 617(1) Code to the pre-recording of the complainants’ evidence.
The Court observed, without deciding, that it was “arguable” that s 617 Code did not apply: The process of pre-recording for subsequent tender at trial may mean that the pre-recording hearing is not itself part of the trial. . However, if it were applicable (and the trial judge had erred in law by ordering that the pre-recording proceed in the absence of the appellant), that there was no substantial miscarriage of justice: There was no material relied on by the appellant to explain the nature of any prejudice, and no suggestion that the opportunity given to him to take give instructions was inadequate. .
The appeal against conviction was dismissed.
Z Brereton of Counsel