Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JD v R [2013] NSWCCA 198 Hearing dates: 9 August 2013 Decision date: 09 August 2013 Before: Latham J Price J R A Hulme J Decision: Leave refused Catchwords: CRIMINAL LAW - application for leave to appeal against interlocutory ruling - ruling refusing temporary stay of trial - applicant charged with sexual assault of a child between 10 and 14 years of age, sexual intercourse without consent and aggravated indecent assault - heavily pregnant complainant to give evidence from another State - whether judge erred in application of test under s 7(2)(c), Evidence (Audio and Audio VIsual Links) Act 1998 - whether advanced stage of complainant's pregnancy would unfairly prejudice applicant - trial judge has broad powers to manage trial process - no error in exercise of judge's discretion - no error in application of relevant test - leave refused Legislation Cited: Criminal Appeal Act 1912 Evidence (Audio and Audio Visual Links) Act 1998 Evidence Act 1995 Cases Cited: Jago v District Court (NSW) (1989) 168 CLR 23 MG v R [2007] NSWCCA 57 ; 69 NSWLR 57 Subramaniam v R (2004) 211 ALR 1 Category: Principal judgment Parties: JD - (Applicant) Regina - (Crown Respondent) Representation: Counsel D Dalton SC/SM Kluss - (Applicant) V Lydiard - (Crown Respondent) Solicitors Vince Boss & Associates - (Applicant) Solicitor for Public Prosecutions - (Crown Respondent) File Number(s): 2011/408277 Decision under appeal Date of Decision: 2013-07-29 00:00:00 Before: LK Wells QC DCJ File Number(s): 2011/00408277 Judgment 1THE COURT : This is an application pursuant to s 5F of the Criminal Appeal Act 1912 seeking leave to appeal against an interlocutory ruling by Wells SC DCJ refusing a temporary stay of the applicant's trial on charges relating to the sexual assault of a child between 10 and 14 years of age, sexual intercourse without consent and aggravated indecent assault. 2The application came before the Court on 9 August in anticipation of the trial commencing on 12 August at Lismore District Court. After the hearing of the matter, the Court refused leave. The following are the reasons for that decision. 3The charges date from late 2003 to late 2005. The allegations were not reported to police until November 2011. The applicant was charged in December 2011. The trial date was set when the applicant was arraigned on 13 March 2013. 4On 19 July 2013, the Crown advised the applicant's solicitor that the Crown would be making an application to the court that the complainant, who is now 20 years of age and resides in South Australia, give evidence in the trial by way of audio-visual link. The Crown provided a medical certificate dated 8 July 2013 which established that the complainant was then 30 weeks pregnant and had been advised against travelling by plane to attend the trial. Her due date is 11 September 2013. 5On 29 July 2013, the applicant's solicitor applied for an adjournment of the trial on the basis that it would be unfair to subject the "heavily pregnant" complainant to "the rigours of cross-examination". It was further asserted in an affidavit by the applicant's solicitor in support of the Notice of Motion of 26 July that :- The court has an obligation not only to the complainant but also her unborn child to consider their health and safety in the context of a jury trial and that the medical material support the contention that they are especially and temporarily vulnerable at this time. 6In addition, the applicant's solicitor raised the prospect of an unfair trial, in that the jury would be unduly sympathetic towards the complainant, because the jury may not be able to distinguish between the emotions of the complainant attributable to her pregnancy from those attributable to giving evidence of the alleged assaults. 7A further consideration in support of the application was the need to take the complainant to a number of documents, items and photographs in the course of cross-examination. As to this last ground, the applicant maintained that the complainant should be available within the court precincts albeit in a remote location from the courtroom in order for this to occur. 8The applicant's solicitor also relied upon a medical certificate in relation to his own health, which established that the solicitor was under investigation and management for stress-related chest pains. The applicant's solicitor also pointed to the fact that there was another sexual assault trial listed in the same week which could proceed in lieu of the applicant's trial. 9The judge refused the application. The judge noted the bases of the application and the complainant's wish that the trial proceed on the nominated date. The solicitor's health was not regarded by the judge as a relevant matter, given the age of the allegations and the priority usually accorded sexual assault trials. The applicant's solicitor was advised that the matter should be reallocated if he felt unable to appropriately instruct counsel at trial. The judge also rejected the fact that there was another trial listed in the same week as an appropriate or proper reason for the vacation of the applicant's trial. 10On 1 August 2013 the applicant renewed his application by way of a further notice of motion and a supporting affidavit from the applicant's solicitor. This notice of motion dated 29 July 2013 sought a temporary stay of the trial until such time as the complainant was sufficiently able to attend. The affidavit in support of this notice of motion indicated that the applicant opposed the complainant's evidence being given from South Australia on the basis that it "is extremely prejudicial to the [applicant] for the complainant to appear in the circumstances", that it would be "unfair to subject a complainant so heavily pregnant to the rigours of cross-examination in a jury trial and highly prejudicial to the [applicant]". 11Once again, the submission was made that the jury would feel undue compassion for a pregnant complainant and interpret the proper cross- examination of the complainant as inappropriate and traumatising. The submission that the court had an obligation to the complainant and her unborn child was repeated in the same terms as outlined above, as was the submission in relation to the need to show the complainant a number of documents in cross-examination. It was submitted that any attempt to put these items in cross-examination by way of facsimile "would prove a logistical nightmare and impracticable in the circumstances." 12The applicant's solicitor reiterated that his health had further deteriorated and that as a result he had reduced his workload substantially by way of operating as a legal consultant. It was submitted that the applicant was not in a financial position to engage the services of any other legal representative. The solicitor claimed that he was unable to confirm that he could continue to instruct in the trial. 13The judge again refused the application. The judge considered that any prejudice flowing from the fact that the complainant would be giving evidence in an advanced state of pregnancy could be cured by appropriate directions to the jury. The applicant's concerns about the complainant's fitness to withstand the rigours of cross-examination were noted. However, the judge observed that the complainant wished the matter to proceed and that she considered herself well enough for that purpose. The judge had regard to the other matters raised in support of the application and was not persuaded that they justified the vacation of the trial date. 14The application did not suggest in terms that the direction that the complainant give evidence from South Australia is outside the ambit of the legislation. Parts 2 and 4 of the Evidence (Audio and Audio Visual Links) Act 1998 (the Act) include the following provisions :- 7(1) A NSW court may, on the application of a party to a proceeding before the court, direct that evidence be taken, or submissions made, by audio link or audio visual link, from a participating State. (2) The court must not make such a direction if: (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that evidence or submissions can more conveniently be given or made in this State, or (c) the court is satisfied by a party opposing the making of the direction that the direction would be unfair to the party. 20A Evidence must not be given, and a submission must not be made, by audio visual link under this Act unless the courtroom or other place where a NSW court is sitting, and the place where the evidence would be given or the submission would be made, are equipped with audio visual link facilities that enable: (a) persons who are at the courtroom or other place to see and hear the person giving the evidence or making the submission, and (b) persons who are at the place where the evidence is given or the submission is made to see and hear persons at the courtroom or other place. 20E If in the course of examination of a person by audio link or audio visual link it is necessary to put a document to the person, the NSW court may permit the document to be put to the person: (a) if the document is at the courtroom or other place where the court is sitting, by transmitting by any means a copy of it to the place where the person is giving evidence or making a submission and the copy so transmitted being then put to the person, or (b) if the document is at the place where the person is giving evidence or making a submission, by putting it to the person and then transmitting by any means a copy of it to the courtroom or other place. 15However, on the hearing of the application, it became clear that the applicant was essentially submitting that the test under s 7(2)(c) was not correctly applied by the judge. The submission was that the judge erred in failing to consider whether allowing a heavily pregnant complainant to give evidence and be subjected to strenuous cross-examination would give rise to prejudice to the applicant, in that a reasonably informed member of the public would conclude that the applicant would not receive a fair trial. 16In support of this submission, the applicant relied upon this Court's decision in MG v R [2007] NSWCCA 57 ; 69 NSWLR 57, in particular at [65] to [66] and [70]. Those paragraphs contain uncontroversial statements concerning the right to a fair trial, by reference to Jago v District Court (NSW) (1989) 168 CLR 23, and Subramaniam v R (2004) 211 ALR 1. They do not, however, include a reference to a reasonably informed member of the public. That concept appears at [68] in the following context :- Application of the principle is relatively uncomplicated when the suggestion is of actual bias in a judicial officer or juror. It is more complicated when the suggestion is that the judicial officer or juror is affected by apprehended bias. In that case "the governing principle is that ... a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done" p 344. (italics not in original) 17Thus, the Court makes plain that the "fair minded lay observer" is the touchstone for the "governing principle" in cases of apprehended bias on the part of a judicial officer or juror. MG itself was a case concerned with the apprehension of bias on the part of the Crown Prosecutor. It is not authority for the proposition that a test such as that proposed by the applicant has any part to play in determining whether a direction under s 7 of the Act is unfair to the opposing party. 18The applicant further submitted that he could not receive a fair trial while the complainant was in the advanced stages of her pregnancy because her "vulnerable condition" would necessarily constrain counsel in her cross-examination of the complainant (citing s 41 of the Evidence Act 1995, and the New South Wales Bar Association Rules). Additional factors relied upon included the possibility that the stress of giving evidence could precipitate labour and result in the trial being aborted at considerable expense to the applicant, the fact that the jury would feel a "heightened level of sympathy" for the complainant on account of her condition, and anger or revulsion at defence counsel's attack upon a pregnant woman in the course of a forensically appropriate cross-examination. 19Finally, the applicant also relied upon the need to show the complainant at least 40 documents during cross examination without advance notice. It was submitted that it was not logistically possible to do so without compromising the forensic advantage to the applicant. 20The answer to these submissions lies in the broad powers of the trial judge to manage the trial process. There is no evidence supporting the proposition that the complainant's condition is "vulnerable" or that there is any prospect of an early labour. There is no substance to the submissions concerning the potential reactions of the jury to the cross-examination of a pregnant complainant in circumstances where the complainant is capable of being viewed in the course of the trial in a manner that does not disclose her pregnancy. 21Section 41 of the Evidence Act provides for the rejection by the trial judge of misleading, confusing, unduly annoying, harassing, offensive, insulting, intimidating, oppressive, humiliating and repetitive questions in cross- examination. The Bar Rules essentially replicate this provision. There is no basis for concluding that responsible and experienced counsel cannot effectively cross examine a pregnant complainant without falling foul of these precepts. The complainant's pregnancy has no relationship with the issues at trial. 22The applicant acknowledged that it was entirely feasible for a sealed folder of copy documents to be sent to South Australia and placed in the possession of a court official for production to the complainant at the relevant stage in her cross-examination. There is no reason to think that any forensic advantage would be lost if those arrangements were made and carried into effect. 23There was no error in the exercise of the judge's discretion or in the application of the relevant test for the purposes of the Crown's application under the Act. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2013