View from the Inside: How are the Amendments being Applied?
New section 38C — Accused may be screened from witness in court
(1) This section applies to the complainant or a similar act witness (the “witness”) giving evidence in—
(a) a sexual offence proceeding...
(2) The court may order that the courtroom be arranged in a way that, while the witness is giving evidence, the witness cannot see—
(a) the accused person; or
(b) anyone else the court considers should be screened from the witness.
Research in other jurisdictions suggests that screens are rarely used in practice because of the preference for CCTV,[33] and that when screens are required, the discretionary practice is often not invoked.[34] The legal practitioners surveyed concur with none of the participants either making or observing an order made for the use of screens as all victims of sexual assault are eligible to give evidence via CCTV. [35]
I have never been asked to make orders under [section] 38C — the standard practice seems to be to rely on Divisions 4.2B and 4.3 and have the evidence given by audio-visual link from a remote witness room.[36]
In practice all complainants give evidence remotely via video link and the accused is positioned so that the witness cannot see the accused... Because of the provisions almost mandating evidence by video link [section] 38C in my experience has never specifically arisen [37]
One judicial officer said that he “would rely particularly on any submissions from the accused or his/her counsel”[38] when deciding whether to make an order under this section.
I interpret this section as giving the court a discretion to screen a witness from the accused in the relevant proceeding. I find it difficult to see who else should be out of sight of the witness. I would generally make an order when requested. It would really be up to the accused to justify why the measures should not be implemented.[39]
When asked to hypothesise when an order under this section would not be made, two judges responded:
It is impossible to imagine the range of circumstances in which an order under [section] 38C would be sought, and accordingly impossible to identify any particular cases in which’ such an order would be refused.[40]
I find it difficult to imagine the circumstances.
I suppose it is possible that there would be some circumstance, but I find it difficult to see it.[41]However, others did hypothesise that “in the unusual situation where a witness is giving evidence in court rather than via CCTV”,[42] an order for the use of screens would not be made if the “test [is] not satisfied”[43] or criteria not met.[44]
Although the victim support personnel surveyed had never seen the use of screens in court, they were asked about their potential burdens and benefits. One victim support worker reported that “people who want to sit in court usually do so because they want to see the defendant: most of the people I support are entitled to use CCTV so if they are in the courtroom it is because they have chosen to be and [chosen] to be able to see the accused”.[45]
Interestingly, the victim witness in our study who chose to give evidence in the courtroom was not offered screens for her protection. This victim stated that she “did not want to testify via CCTV because she felt that she had greater control and a greater presence in the courtroom”, however, she did want to be screened from the accused in the courtroom.[46] She had asked the prosecution about the use of screens, and was told that “they didn’t do that here — it wasn’t an option”.[47] It must be noted that this trial was held approximately three months after the introduction of the new legislation. Because screens were not used in this case, the victim felt “scared’ because she “had to walk right past him”, “anxious” while giving evidence, and she “had trouble breathing”.[48] She stated that the accused and his family were “unnerving and distracting” and that the accused was “glaring at her the whole time and trying to put her off'’.[49] One victim support officer supported this finding, stating that if the victim is unable to see the accused, they are “able to speak with more confidence and certainty knowing they [cannot] see the accused but [knowing that the accused can] hear them tell their story”.[50]
New section 38E — Witness may have support person in court
(1) The court must, on application by a party who intends to call a witness, order that the witness have a person (a support person) in the court close to, and within the witness’s sight, while the witness gives evidence.
“An application for a support person to be present is commonly made in relation to people who are to give evidence by audio-visual link from a remote witness room”.[51] Judicial officers surveyed indicated that the section “requires that where the prosecution... requests a support person to be with the witness, the court must comply with that request”:[52]
I have never had such an application opposed by the other party, and have never declined to make such an order when sought.[53]
This view was confirmed by the legal practitioners surveyed, one of whom stated that as the section is interpreted and applied “strictly, it is very seldomly opposed by defence”.[54]
In practice virtually all complainants give evidence remotely by video link and in the room with them is a sheriff’s officer who hands exhibits etc and ensures that the support person — who is also in the room but not on camera — is not gesturing to the witness.[55]
Usually a DPP staff member sits near the witness in the room from which the witness is testifying and is out of the sight of those watching the testimony in Court.[56]
Routinely when evidence is given via CCTV, the court is advised that a support person is present in the remote room. Usually that person is the witness support officer from the DPP.[57]
Both victim witness participants in our study had support people from the ACT DPP and/or Canberra Rape Crisis Centre (CRCC) within their sight whilst giving evidence. The support people were described as “very helpful, friendly [and] approachable”.[58] The victims felt that the support people improved their experience, and neither of them would have preferred to testify alone:
[She] made me feel more comfortable. Improved the experience. Definitely no to testifying alone. Support is much better.[59]
I felt that I always had support with me and someone to talk to — even when I was walking to and from the court.[60]
The only problem reported to arise in relation to the application of this section is where “there is some issue as to the person who is the support person being an appropriate person”.[61] One victim witness was faced with the question of who could be present whilst she gave evidence at the committal.
At the hearing she had a witness support person from the DPP and a counsellor from the CRCC with her in the remote witness room. However, the counsellor was asked to leave before the witness gave her evidence because the defence counsel had objected to the fact that the counsellor was present when the victim gave her initial statement, and was worried that the counsellor was going to “coach her”.[62]Revised section 39 — Sexual and violent offence proceeding — evidence to be given in closed court
(2) The court may order that the court be closed to the public while all or part of the witness’s evidence (including evidence given under crossexamination) is given.
(3) In deciding whether to order that the court be closed to the public, the court must consider whether—
(a) the witness wants to give evidence in open court; and
(b) it is in the interests of justice that the witness give evidence in open court.
Judges provided mixed responses as to how they interpreted the meaning of section 39(3)(b), with one stating that (s)he would allow the court to be closed “[i]f the vulnerability test is satisfied and it is otherwise fair to allow the evidence to be given”.[63] Another judicial officer took a slightly different viewpoint on the meaning of “interests of justice”:
The interest is the need for complainants especially not being deterred from making complaints by the fear that some very personal details of their interaction with the accused will become public property because of the evidence that they give.[64]
When asked what (s)he would do if there was a conflict between the victim’s wishes and the interests of justice, this judge stated that (s)he “would mostly accept the wishes of the witness;... [(s)he could] see little justice in not doing so”.[65] However, the other two judicial officers did not agree, with one saying that (s)he could not give either consideration more weight overall, that the “decision would depend on the details of each competing consideration”.[66] This judge also stated that “I would need to consider why the witness was so keen to give evidence in open court, and the nature and degree of the impact of that on the interests of justice”.[67]
The lawyer respondents reported that orders to close the court are “rarely sought and rarely made”, “as it should be”,[68] but that an order might be “requested if a complainant particularly wants the court to be closed during their evidence”.[69] One practitioner stated that “so far there has been little occasion for recourse to this section”.[70] Another reported that the “public interest points in the direction of evidence being given in open Court”.[71]
Victim support workers stated that, in practice, “an order may be made for a court to be closed if it is going to enhance the person’s evidence.
application can be made up until the morning the person is supposed to give evidence”.[72] However, despite the apparently equal weighting of the factors by judicial officers discussed above, one victim support worker believes that the “[p]ublic interest always trumps a victim’s wishes or concerns. The victim is often treated as an afterthought or like an annoyance, despite the rhetoric that is heard in court”.[73] This support person also confirmed the view that the power of the judicial officer to close the court to the public is rarely invoked: “victims have asked to have a closed court, but rarely is it granted or applied for”.[74]When asked about the victims’ wishes, another victim support person stated that:
Most people are fine for the court to be open as not many people sit in anyway. Some do not want the defendant’s family in there, and some do not want their own family in there, so in these cases a closed court application may be made.[75]
They do not like that others can hear their evidence and are particularly concerned about the defendant’s supporters being able to hear the evidence. They find the open court very intimidating.[76]
However, all victim support personnel reported that most victims would prefer the court to be closed to the public, and that a closed court improved their experience:
... knowing that their personal life is not being portrayed to those who may not know them is definitely a confidence booster.[77]
They are happy that there is not just anyone sitting in the courtroom listening to their evidence.[78]
The victim witnesses supported this view. Although both victims gave their evidence in an open court, each stated that she would have preferred the court to be closed to the public. In one of the victim participant’s cases, the prosecutor said that it was not in the interests of justice for the court to be closed, so they did not even apply for an order.
As a result, the victim reported feeling distracted and abused.[79] She felt that it was her story, not a story for the public — that she was talking about such personal things (including her own body) that she would rather not have talked about them in public.[80] She would also have preferred to only have specific people in the courtroom (no students) and would have liked it if people didn’t keep coming and going.[81]The other victim witness participant reported that she was concerned about the publicity of the trial, and would have preferred if this were avoided:
I was nervous about it being printed in the paper as Canberra is small and my story was read by many people and confidentiality is difficult to maintain. People who know people, know people and two and two are put together very easily. Although trying to be positive, people read my story creating awareness, education and my story being heard and helping victims and criminals and the whole process. Having the choice and control over public access may have been nice.[82]
New section 40P — Meaning of witness — div 4.2B
(1) For this division, a witness is a prosecution witness in a sexual offence proceeding who—
(a) is a child; or
(b) is intellectually impaired; or
(c) is a complainant who the court considers must give evidence as soon as practicable because the complainant is likely to—
(i) suffer severe emotional trauma; or
(ii) be intimidated or distressed.
Once this definition of witness is satisfied, “a witness may give evidence at a pre-trial hearing [and] the evidence must be given by audiovisual link”.[83] This recording then “must... be played at the hearing of the sexual offence proceeding”.[84]
When asked how they would determine which witnesses fit within the definition of section 40P(C) judicial officer respondents stated that “it is not a comparative exercise”; that “it is an assessment of the particular witness”:[85]
There is no question of determining which witnesses are more likely to suffer trauma etc than others (it’s not a choice or a competition). The determination is whether, for the reasons specified, a witness must give evidence as soon as practicable.[86]
Legal practitioners supported the view that “it’s done on a case by case basis” and stated that “child witnesses are more vulnerable generally”.[87] Although one practitioner remarked that “in practice ALL complainants in sexual matters are effectively ‘deemed’ to be likely to suffer intimidation or distress”,[88] it does not seem that this view is translating into the application of the section in practice.
I have not yet seen [an application under this section made]. Presumably this would be done by affidavit, probably authored by a staff member from the DPP, annexing relevant reports. There may or may not be a need for cross examination.[89]
When asked how they would come to a decision under this section, judicial officers reported that it would “involve looking at what kind of evidence the prosecution raises”, which might include an “expert report, from a medical practitioner or psychologist to support the claim”,[90] and “whether the defence opposes a determination that the witness give evidence in a pre-trial hearing”.[91]
Legal practitioners and victim support personnel confirmed this, albeit with the caveat that “these provisions have not been in operation for long in a small jurisdiction, [so] many of these questions cannot be answered conclusively yet”:[92] [93] I would expect that expert medical evidence would be required on this 75 issue? One victim support worker stated that “often defence will agree and a date for a pre-trial hearing is set, [but at] other times we have had to get a letter from a psychologist outlining the issues”.[94] Legal practitioners and victim support personnel also illustrated the process prior to the decision by the judge: Through prior discussions with witnesses, the Prosecution usually is made aware when a person is likely to suffer trauma or be intimidated or distressed as a result of delay, and an application is made accordingly.[95] This [issue] is usually brought up by the witness who verbalises that they need to give evidence ASAP as they are not coping well. [The provision] has also been used where trials are being set a long time in advance. That causes people further distress.[96] [One victim] stated that they needed to give evidence as soon as possible so the prosecutor made an application in court.[97] [The need for this provision is usually determined] by the way in which the victim presents. The DPP will determine whether they are a suitable candidate...[98] It therefore certainly does not appear that the prosecutors are routinely making these applications: It would usually only be once a person mentions that they are not coping or have some mental health conditions that we (the prosecutor or [victim support]) will bring up the possibility of a [pre-trial evidence] with them. Otherwise we would not inform them if they seem able to cope with the time.[99] Two victim support workers stated that “both the AFP and the DPP explained the new legislation to each victim whose matter ends up proceeding”.[100] However, one clarified that the victims are only actually made aware of those processes that are automatically available to them: All victims are advised about what is automatic for them, such as CCTV etc. For those provisions that are not automatic and need an application, they are only advised if the prosecutor (or [victim support worker]) thinks that they would be successful in the application and that it would assist them in giving evidence.[101] One legal practitioner reported that (s)he had been involved in approximately 15 sexual assault trials involving adult complainants. Of these matters, two applications for pre-trial hearings were made, and both were made by consent, that is, the defence did not object to the victim’s evidence being taken at a pre-trial hearing and so it was not necessary to argue in court why the pre-trial evidence should be given.[102] Another victim support worker estimated that the prosecution “don’t apply for the pre-trial hearing. in about 80 per cent” of cases because “there is no severe emotional trauma or they are not particularly intimidated or distressed”.[103] This finding suggests that the “filter” at the prosecutorial stage, whereby the prosecutor or victim support worker assesses the eligibility of the victim, is acting as more of a barrier to the special provisions than objections by the defence or non-granting of the application by the judicial officer. In this study, one victim was not made aware of the process at all and stated that she didn’t “think it was available”,[104] despite her trial being held almost four months after the introduction of the reforms. In the other case, the prosecutor offered to pre-record the victim’s evidence, but the victim declined because she had her “mind set on giving evidence in court”.[105] This was because the police officer that she had spoken to had told her that she would appear to be a strong witness if she gave evidence in the courtroom, and despite the fact that the victim support worker had told her that she should not give evidence in court. So although this victim was aware of the reforms and that her evidence could be pre-recorded, an application was not made.[106] Interestingly, one judicial officer in the study also referred to the view that witnesses appear stronger in the courtroom: There is still a strong feeling that the evidence by CCTV is not as striking and effective as evidence in the courtroom. I have not seen research on this, but have a feeling that there may be some case to justify this.[107] Victim support workers described the pre-trial hearing process as “stressful, [but] manageable”[108] and “streamlined and calmer”.[109] It is reported to be very “organised” such that “both parties know what to expect”, and provides victims and their supporters with “knowledge” and “empowerment” because they know “what is ahead” and can feel some control over the process: “victims finally feel they are not the ones on trial”.[110] Having procedures in place for those more “vulnerable” was viewed as being “supportive” of victims.[111] One victim support worker reported that knowing that reforms have been put into place for them provides victims with “confidence in the criminal justice system”.[112] Victims who had been involved in a pre-trial hearing were reported to have been “very happy” with the fact that they did not have to give evidence again at the actual trial: “They were glad that things were over and done with”.[113] Victim support personnel also reported that victims were “more willing to become involved with the criminal justice system”.[114] Furthermore, one victim support worker reported that (s)he had not seen any victims who gave evidence at a pre-trial hearing be recalled to give further evidence at the trial.[115] New section 40T — Witness may be required to attend hearing (1) This section applies if an audiovisual recording of a witness’s evidence given at a pre-trial hearing is admitted in evidence at the hearing of a sexual offence proceeding. (2) The accused person may apply to the court for an order that the witness attend the hearing of the sexual offence proceeding to give further evidence. (3) The court must not make the order unless satisfied that— (a) if the witness had given evidence in person at the hearing of the sexual offence proceeding, the witness could be recalled; and (b) it is in the interests of justice to make the order. Judicial officers and legal practitioners reported not having seen this section applied in practice, but were able to hypothesise about how it might be interpreted. One judicial officer outlined the importance of this section, as “there may be a chance that the trial would be decided one way or another because of the absence of that additional evidence”.[116] When asked how (s)he would interpret the meaning of “interests of justice”, one judicial officer stated that: [Section] 46 of the Evidence Act 1995 (Cth) provides for the recall of witnesses, and there is a view that the rule in Browne v Dunn may permit recall of witnesses in some other cases as well. I have never been asked to make an order under this section, but I suspect that if recall of the witness was available under the Evidence Act/Browne v Dunn tests, then it would usually be in the interests of justice to do so.[117] Legal practitioners provided slightly different interpretations: It would be seen as being in the interest of justice if it was necessary for the accused to obtain a fair trial.[118] [It would have to be] something of relevance that would justify recalling the witness and [which] could prejudice a fair trial not to have the matter followed up with the witness — as the legislation states.[119] At face value the provision is wide in the sense that the circumstances where someone may be recalled are broad, and the interests of justice are similarly broad. It would be expected however that the provision would be interpreted restrictively to limit the occasions where a person might be recalled.[120] When asked to hypothesise about when the section might actually be invoked in practice, legal practitioners essentially shared the view that a victim would be recalled where new evidence became apparent after the witness had given evidence: [A witness would be recalled] in circumstances when new evidence comes to light after the witness gives his/her evidence — generally that is the only time.[121] It is likely they would be recalled only if a new issue not raised in their evidence was raised by another witness.[122] New section 40V—Recording of witness's evidence at pre-trial hearing admissible in related hearing (1) This section applies if an audiovisual recording of a witness’s evidence given at a pre-trial hearing is admitted in evidence at the hearing of a sexual offence proceeding. (2) The recording is admissible as the witness’s evidence in a related proceeding unless the court in the related proceeding otherwise orders. (3) However, the court in the related proceeding may— (a) refuse to admit all or any part of the audiovisual recording in evidence; and (b) if the court refuses to admit part of the recording in evidence— order that the part that is not admitted be deleted from the recording. One judicial officer stated the admissibility, or non-acceptance, of evidence under this section would be subject to the same test as under section 40T (the Evidence Act and Browne v Dunn tests).[123] Other judicial officers and legal practitioners hypothesised that, in practice, the evidence could be rejected for a number of reasons: Where there is a clear indication that the witness had been asked blatant leading questions or a suggestion of prompting by the questioners.[124] In circumstances when it is necessary to ensure the accused gets a fair trial and is able to canvass all issues with the witness.[125] If there is something unfair to the accused in the questioning of the witness (ie cross examination of witness, suggesting answer in question) then that part of the interview can be excluded. The prosecution would then need to lead evidence on the excluded area in the usual way.[126] Presumably it would be in the interests of justice to refuse where the factual paradigms differ between the two cases despite the relatedness (eg occurrence the issue in one case, and consent in the second).[127] If it prejudices the case in some way.[128] These findings demonstrate that if evidence is pre-recorded at a pretrial hearing, there are still a number of opportunities for it to be challenged and reasons for it to be inadmissible in a related hearing, thereby reducing the intended effect of the section. Revised section 43 — Giving evidence from place other than courtroom (1) This section applies if the courtroom where a sexual or violent offence is heard and another place are linked by an audiovisual link. (2) The evidence of the complainant and each similar act witness must be given by audiovisual link from the other place unless the court otherwise orders. (3) The court may make an order under subsection (2) only if satisfied— (a) that— (i) for the complainant—the complainant prefers to give evidence in the courtroom;... or (b) if the order is not made— (i) the sexual or violent offence proceeding may be unreasonably delayed; or (ii) there is a substantial risk that the court will not be able to ensure that the sexual or violent offence proceeding is conducted fairly. Participants did report that CCTV is routinely used, and most of them had not seen an order made under this section for the victim to appear in court. Judicial officers and legal practitioners indicated that the only time the use of CCTV might be challenged is “when there is some particular characteristic of the witness (such as size) which cannot be adequately assessed from the audiovisual transmission”,[129] or where “it could be said the jury or judge could not assess the witness unless they see his/her body language etc”.[130] Only one judicial officer reported that (s)he had made an order under this section, and it was for this exact reason: I have made an order under [section] 43 once, in a violent offence proceeding. The order was sought by the defence, who were planning to raise self-defence and wanted the jury to be able to see the respective sizes of the relatively slight accused and the rather bigger complainant. I was inclined to the view that this did raise an issue of fairness that might justify making the order, but in the event the complainant was willing to give evidence in person so the order was made, in effect, by consent. This meant that I didn't hear the accused’s fairness arguments in favour of the order or any opposing arguments from the complainant, and didn't have to reach a conclusion on the fairness point.[131] Victim support personnel reported that victims who gave evidence via CCTV were “able to speak with more confidence and certainty knowing they couldn't see the accused but [knowing] they could hear them tell their story”.[132] The victim witness who used CCTV supported this view: I chose not to see the accused and this was definitely the best option. Unfortunately when the trial finished we went out at the same time as the accused and I saw the accused and started crying at having to see him. Absolutely best avoided. Best avoided due to horrible feelings towards accused. Too confronting seeing accused.[133]