Procedure in prescribed sexual offence cases

This paper addresses specific procedures which must be considered in cases involving prescribed sexual offences, largely as a result of specific legislation. Sections 290–294C of the Criminal Procedure Act 1986 must be adopted during the evidence of the complainant in all proceedings for prescribed sexual offences, whether adult or child complainant. For instance, evidence of the complainant must be held in camera: s 291. All complainants are entitled to give evidence from outside the courtroom by CCTV or give evidence in court behind a screen: s 294B(3). A complainant is entitled to have a support person: s 294C. An unrepresented accused may not examine a complainant: s 294A.

Overview

[1]This paper addresses specific procedures which must be considered in cases involving “prescribed sexual offences”, largely as a result of specific legislation. They are mainly relevant in jury trials, but also apply to judge-alone trials and appeals involving prescribed sexual offences. The paper will also suggest some other procedures which should be considered and applied in such trials.

Legislative provisions requiring special procedures

[2]Procedures applying to both adult and child complainants, as specified by legislation, are found in the Criminal Procedure Act 1986 Ch 6, Pt 5, “Evidence in Sexual Offence Proceedings”, ss 290–306L. They apply specifically to all proceedings for a “prescribed sexual offence”. Specific additional provisions applying only to vulnerable complainants (a child or a cognitively impaired person) are also found in Pt 6 of Ch 6 of the Criminal Procedure Act 1986.

What are prescribed sexual offences?

[3]They are defined in s 3 of the Criminal Procedure Act 1986 as all of the sexual assault offences in Pt 3, Div 10 of the Crimes Act 1900, or any such offence that was prescribed by the Crimes Act 1900 as a sexual assault offence at the time it was committed under now repealed provisions of that Act, or any offence that involves the commission of, or intention to commit, such a sexual assault or any act which involves an attempt, conspiracy or incitement to commit such a sexual assault. The definition just about covers the field of any form of sexual offence that might come before the court, with the possible exception of carnal knowledge which is still occasionally to be found in some older allegations and which is probably not covered by the definition.

[4]The definition would also cover an offence of detain for advantage, the alleged advantage being with the intention of having sexual intercourse with the complainant and so the special procedures would need to be adopted in such a trial.

Procedures pursuant to Criminal Procedure Act 1986

(a) Sections 290–294C of the Criminal Procedure Act 1986

[5]The following special procedures must be adopted during the evidence of the complainant in all proceedings for prescribed sexual offences, whether adult/child complainant.

(i) Evidence in camera

[6]The evidence of the complainant must be held in camera unless otherwise directed by the court (s 291(1)), even if the evidence is being given via CCTV or any of the other alternative means of giving evidence in person: s 291(2). Such evidence is only to be given in open court if requested by a party, and it is either in the “special interests of justice” or the complainant consents: s 291(3). Finding the “special interests of justice” involves a limited exercise of discretion because s 291(4) specifically provides that the principle that proceedings should generally be in open or in public and/or that justice should be seen to be done etc, does not constitute the “special interests of justice” in determining whether or not the complainant should give evidence in open court. There are no decided cases yet defining the extent of this discretion.

Commentary

The need for proceedings to be held in camera when a witness is giving evidence from somewhere outside the courtroom via CCTV seems unnecessary, particularly as the witness can see no more of the courtroom than the bench and the middle of the bar table.
It is far from certain that members of an accused’s family or a friend can be permitted to remain in court when a complainant gives evidence in camera, even when the evidence is being given via CCTV and only if it is found to be “in the special interests of justice”. Whilst that might be easy to establish in some cases, for example, if the accused is a juvenile or someone with special needs, this provision on its face can mean that none, including the family and friends of an accused who is ultimately convicted, who probably have only ever heard his/her version of events, will ever hear or know the basis on which he is convicted. That is apt to undermine confidence in the system. A judge is well capable of protecting the interests of a complainant, by excluding any particular person where appropriate or ensuring that they do not sit in the line of sight of a complainant if evidence is being given in court. The NSW Bar Association is currently making a suggestion for amendment of the provision to enable family members of the accused to remain present in court but at the discretion of the judges.

(ii) Media access to proceedings in camera

[7]The court may allow media representatives to remain in court when the evidence of a complainant is being given via CCTV or similar electronic method, even though the proceedings are in camera: s 291C(1).

Commentary

[8]This provision appears somewhat unusual in that a media representative may be present in court when a complainant is giving evidence via CCTV, but the family of an accused may not. It is suggested that reform is needed in the interest of fairness and confidence in the system.

[9]Where the complainant gives evidence in person and the proceedings are held in camera, the media may not be present, but the court may make arrangements for them to view the CCTV evidence in another part of the court premises or to view a recording of the evidence: s 291C(2).

Commentary

[10]This provision does not appear to have been used yet and it is hard to envisage how in practical terms it would work given the technical difficulties that seem to arise and the very limited space otherwise available. If there is media interest, however, in a particular trial and the complainant is giving evidence in person in the courtroom, it is arguably far preferable that the media be present in court, subject to judicial scrutiny and direction, reporting on what is actually given as evidence rather than relying on second-hand versions or possibly on what might have been in a police statement.

(iii) Alternatives methods of giving evidence — CCTV and others

[11]All complainants, whether adult or child, are entitled to give evidence from outside the courtroom by CCTV or similar electronic system or to give evidence in the courtroom from behind a screen or by removing people from the line of sight of the complainant: s 294B(3). Complainants may choose not to take advantage of these alternatives, but if they do make such a choice there is some discretion in the court, either of its own motion or on the application of a party, to refuse to allow the evidence to be given in this way, but only if there are “special reasons in the interests of justice” for this not to occur: s 294B(5) and (6). There are no decided cases defining this provision. Where these methods are used in a jury trial, the jury must be informed by the judge that this is standard procedure, that they must not draw any inference adverse to the accused because this procedure is being used and must not give the evidence any greater or lesser weight: s 294B(7).

Commentary

Difficulties arising when evidence given via CCTV

Technical problems, for example, does the equipment work? Can the complainant both hear what is happening in the courtroom and be heard and seen in the courtroom by all involved such as the jury and accused? If the complainant is a child, is she/he tall enough to be seen on the screens in court? The use of a booster seat may be needed. These problems all need to be addressed in the absence of the jury so that any limitations are obvious and can be solved before evidence is given and delays are minimised. Also the judge needs to familiarise himself/herself with the equipment, for instance, how to switch from full-view room to face-view of the complainant and when to do that.
Are there physical exhibits to be identified or tendered? If evidence is being given from a remote location that needs to be addressed pre-trial, and photographs and documents made available to the court officers at the remote site. It can otherwise lead to delays and disjointed evidence.
There are more basic issues such as not forgetting that the witness still needs to be sworn/affirmed via the court officer in the remote room. Also not forgetting that the visage of the presiding judge is on one of the two screens in front of the witness in the remote location at all times, and so the sorts of things that can be done in a normal trial with a witness in the witness box without any concern, for example, reaching for a glass, scratching your nose, looking down at something, eye movements, looking away, talking to the associate, are much more pronounced to such a witness than they would be if she/he was in the courtroom looking out to the body of the court. A wrong impression can be given to a witness from such movements and it has been reported back that it can be quite distracting.

Difficulties when giving evidence from behind a screen

[12]It can be very difficult to position a screen so that the jury can see the witness, the accused can see the witness, the jury can see the accused in court (particularly if he is in the dock) but the witness cannot see the accused. Given the position of cameras in the courtrooms in the Downing Centre, it is impossible to position a complainant behind a screen and make an audio-visual recording of the evidence at the same time, thus making full compliance with s 306B difficult (see below).

(iv) Presence of support person

[13]A complainant of any age is entitled to have a support person or persons present when they are giving their evidence either in court or via CCTV or similar: s 294C. The person is to be near the complainant and within his/her sight. This person can be almost anyone including relative, friend or professional advisor. The accused is not entitled to object to the suitability of the support person (s 294C(4)), and the court cannot of its own motion disallow the person chosen by the complainant unless that choice would prejudice the accused’s right to a fair trial, for example, if the person was a witness or similar.

Commentary

It is a desirable practice to have the name of the support person recorded. In practice, most of these people are independent counsellors, support people or similar, but the potential for problems can arise. Recording the name at least, ensures that the person does not remain anonymous, which is particularly important where that person remains in a CCTV room with a complainant, and the risk of any undue influence may arise during adjournments or out of sight of the camera.
The suggested preferred course for such people where a complainant gives evidence in court, is that they sit in the public gallery but within eyesight of the complainant in the witness box. Not up close to the complainant which may provide some form of distraction for the jury.

(v) Arrangements for complainant’s evidence when accused unrepresented

[14]An unrepresented accused may not examine a complainant but the court may appoint a person to do so: s 294A(2). This applies whether the evidence is being given in person in the courtroom or via CCTV. The appointed person is not entitled to give the accused independent legal advice (s 294A(4)), and may only ask the complainant questions as requested by the accused: s 294A(3). Where this is done in a jury trial, the jury must be informed that it is standard procedure and they are not entitled to draw an inference adverse to the accused, or give the evidence lesser or greater weight as a result of this procedure being used: s 294A(7).

Commentary

[15]This would be a difficult provision to put into effect whilst at the same time preventing a trial from “running off the rails” or becoming unduly lengthy. It has been found to be constitutionally valid: R v MSK and MAK [2004] 61 NSWLR 204; [2004] NSWCCA 308. The author of this paper is unaware that it has ever been put into effect. In R v MSK, the section itself was not in fact used because the accused declined to accept the offer of an appointed person to ask questions of the complainants. The sorts of practical problems in implementing the section, however, were referred to by Justice Wood in the CCA at 219:

In their submissions the appellants pointed to what were suggested to be concerns in relation to uncertain aspects of the section, or problems in its practicable implementation. This was related to issues which were said to arise concerning the way in which the Court might appoint a suitable person; the way in which an accused might convey to the court-appointed person those questions which he wished to have put, particularly those that might arise in the running of the trial; and the way in which arguments as to their admissibility might be resolved: concern was also identified in relation to why it was that the section contemplated the court-appointed person examining and re-examining the complainant, as distinct from cross-examining that witness.

None of these matters, it seems to me, operates as an effective obstacle to a fair trial. There is no difficulty in the way of the trial judge considering, before the commencement of the trial, the appointment of a suitable person who is either nominated by the accused, or who is made available on a pro bono basis following representations either to the Court or to the Law Society or the Bar Association. Such person need not be legally qualified and could come from a wide cross section of the community.

Obviously the accused would be entitled to speak to that person in advance of and during the trial, and in the course thereof, to identify the questions which he wished to be asked. That would not be confined to submitting questions in writing. Nor is it the case that the accused would be denied the opportunity of a short adjournment during the trial, if necessary, to formulate fresh questions.

The restriction in the section relating to the giving of legal advice, which has an obvious relevance so as to relieve the court-appointed person from the duties which might otherwise have attached to a person who had accepted instructions or a brief from the accused, does not restrict the formulation of questions.

Equally obviously, any ruling on the admissibility of the questions will be determined in the absence of the jury after the accused is heard, and in circumstances where the accused would be given the opportunity, if need be, to reformulate the question in an admissible form.

[16]They are all obvious practical difficulties. The best solution in terms of procedure is to ensure that all accused in such trials are in fact represented; but in procedural terms, if it looks to be inevitable that an accused will be unrepresented, it is suggested that there would need to be precise pre-trial mentions and directions, well before the trial was due to commence, well before the complainant was in the vicinity of the court and well before any jury was empanelled, so that these issues could all be canvassed.

(b) Retrials of sexual offence proceedings — ss 306A–306G

[17]There are special procedures applying to retrials:

(i): A retrial for these provisions is defined as a circumstance where a person has been convicted of a prescribed sexual offence and, on appeal, a new trial has been ordered. In such retrials, the prosecutor may tender a record of the evidence given by the complainant in the first trial (the original evidence) as the evidence in the retrial: s 306B. This includes all of his/her evidence including evidence-in-chief, cross-examination and re-examination. The prosecutor must give written notice to the court and the accused of an intention to adduce the evidence in this form at least 21 days before the retrial. The evidence is admissible as an exception to the hearsay provisions of the Evidence Act, and also admissible to prove any fact asserted by the complainant during the course of the evidence presented in that form. The court has no discretion to exclude the evidence being presented in this form (s 306B(5)), but may make rulings rejecting and editing out portions of this earlier evidence if, in accordance with the usual rules and practice, they would be inadmissible if the evidence were to be given orally: s 306B(6).
(ii): Form of the original evidence — It must be the best record available and the records must be authenticated. Pursuant to s 306E(2), the best record is defined as being a audio-visual recording of the evidence; or if that is not available then an audio recording of the evidence; or if neither of those is available, then a transcript of the evidence. Where the evidence-in-chief of a child complainant was presented via pre-recording (see below), then that is the best available record of that part of the original evidence: s 306B(3).
(iii): Access to the original audio-visual recording or visual evidence — An accused or his/her legal representative is not entitled to be given possession of a copy of the original audio or audio-visual evidence, but are entitled to have reasonable access to it: s 306F.
(iv): Further oral evidence of complainant on these retrials — The complainant is not a compellable witness where the original evidence is tendered pursuant to these provisions; but may become compellable and be called to give further oral evidence, only with leave of the court, and where considered necessary to clarify matters raised in the original evidence, or to canvass matters which have arisen since the original trial or are in the interests of justice, but only where the complainant agrees to give such further oral evidence: ss 306C and 306D. Any further oral evidence is subject to all of the more general provisions in ss 290–294C, discussed above.

Commentary

Some courts in the Downing Centre and at least one courtroom in Campbelltown and Parramatta (and perhaps other centres as well) have provision for audio-visual recording the evidence of a complainant in all sexual assault offence proceedings. It is desirable that such trials only be conducted in these courtrooms where the complainant gives evidence in court, because an audio-visual version is the best available record if later relied on in a retrial. All evidence of such complainants via CCTV is also now recorded and can be available for later use. The system for recording in-court evidence is a little cumbersome and there needs to be a pause after every adjournment whilst the court officer “fires the system up”.
There is currently no uniform system of direction in place about what to do with this evidence once it is recorded. The recording is made onto a hard drive which then needs to be copied to a DVD if it is to be retained following a conviction. Some of the equipment copies in real time, making that task slow and cumbersome. It is suggested that directions should be given to court officers to burn DVDs of such evidence every day so that if, at the end of the trial there is a conviction, the DVDs can be marked as an MFI in the trial and retained with the court record. If this direction is left until any conviction at the end of a trial, then it is possible that there may be no court officer available to spend the considerable time necessary to burn the DVD of two or three days evidence. It stays on the hard drive and then, as often happens, it gets lost, recorded over, the system crashes or some similar catastrophe. Suggestions about who and how authentication occurs in those circumstances are welcomed.
To date, original evidence presented in retrials has been limited to reading from a transcript, which carries its own problems. That is, if it is read out, is it “acted” or read in “deadpan”? Should there be two or more voices, the questioners and the complainant? Should they be the same gender as the original speakers?
The provision preventing a legal practitioner from having a copy of the original audio or audio-visual evidence is curious, and presents significant practical difficulties likely to cause delays in trials. This is one important aspect of procedure that must be addressed well before a retrial is to commence to ensure there are no delays and to limit the impact on the jury.

(c) Subsequent trials of sexual offence proceedings — ss 306H–306L

[18]These provisions relate to retrials where a previous trial has been discontinued for any reason including a hung jury, a discharged jury otherwise or if discontinued for any other reason. In such a case the prosecutor may tender as the evidence of the complainant, the original evidence which is defined in the same way as for retrials after appeal. The provisions are almost identical as for retrials after successful appeal.

The original evidence of the complainant is admissible with the same notice provisions as applying in retrials: s 306I(3). The same exceptions to the hearsay rule apply to this original evidence as in appeal retrials (s 306I(4)); the same provisions apply for editing or altering the original evidence to remove statements which would have been inadmissible in accordance with the normal rules had the evidence been given orally (s 306I(6)); the same provisions apply in relation to the compellability of the complainant and election to give further evidence as apply to appeal retrials (ss 306J and 306K); and exactly the same provisions apply in relation to the form of the original evidence, access to it, etc: s 306L.
The difference or distinction between the use of such original evidence on retrial in this category is in s 306I(5), which provides a broad discretion as follows:

Despite subsection (3), the court hearing the new trial proceedings may decline to admit a record of the original evidence of the complainant if, in the court’s opinion, the accused would be unfairly disadvantaged by the admission of the record, having regard to the following:

(a)

the completeness of the original evidence, including whether the complainant has been cross-examined on the evidence,

(b)

the effect of editing any inadmissible evidence from the original evidence,

(c)

the availability or willingness of the complainant to attend to give further evidence and to clarify any matters relating to the original evidence,

(d)

the interests of justice,

(e)

any other matter the court thinks relevant.

Commentary

See above regarding similar provisions for post-appeal retrials.
The potential for longer pre-trial proceedings exists where the prosecution has given notice of an intention to rely on the original evidence in these types of retrials. Thus there is an increased need to identify these problems early during a pre-trial process, well before the trial has been set down for hearing, the jury empanelled and witnesses notified. The risk of further delay is significant and may have an impact on a complainant where he/she has been told that the original evidence is to be relied on, but that ultimately does not occur.

Procedures for vulnerable persons

[19]A child under 16 or a cognitively impaired person (defined as a “vulnerable person” in s 306M of the Criminal Procedure Act 1986) are entitled to give evidence-in-chief by way of a recording of their evidence made previously by an investigating official. This applies not only to sexual assault proceedings and complainants in such cases, but to all vulnerable witnesses and all offences, but is most relevant for trials involving child and cognitively impaired complainants in sexual assault trials.

[20]Section 306U and following sections of the Act defines this procedure:

The vulnerable person is entitled to and may give their evidence-in-chief by way of a previously recorded statement taken by an investigating official.
A recorded statement made when the child was less than 16 years of age may be admitted into evidence “no matter what age the person is” at the time of the trial: s 306U(2).
The vulnerable person must not be present in the court or audible to the court via CCTV while that evidence is played.
The vulnerable person may choose to be present while this recorded evidence-in-chief is played.
A vulnerable person who gives evidence-in-chief in this manner must be made available for cross-examination and re-examination subsequently, either orally in the courtroom or via CCTV or similar.
The court may order that the evidence-in-chief not be given in this way but only if there is a finding that it is in interests of justice for that to occur: s 306Y. It is important to note that this does not require it to be in the “special interests of justice”.
The court may order that a transcript of this recorded evidence be made available to the court and the jury to aid its comprehension: s 306Z. But note, R v NZ [2005] 63 NSWLR 628; [2005] NSWCCA 278 which considers the practical application of this section (then s 15A of the Children (Evidence) Act 1997) and how to deal with the video tape of this evidence-in-chief. It should not be tendered as an exhibit but if this does occur ought not, in general terms, be sent to the jury with other exhibits. Nor should the transcript of any such recording be left with the jury and if they request such a transcript it should, in general terms, only be provided if the transcript of cross-examination and other evidence is also provided. To do so will not necessarily amount to a miscarriage of justice, however, depending on the circumstances: Wilson v R [2006] NSWCCA 217.

[21]Section 306V provides such a recording is admissible as an exception to the hearsay rule, but is not to be admitted unless it is proved that the accused person and his/her lawyer were given a reasonable opportunity to listen to and/or view the recording in accordance with the regulations.

[22]The Criminal Procedure Regulations 2005 Pt 5A provide that the prosecuting authority must give notice of intention to adduce evidence-in-chief via this method. The notice must be in writing; must specify each recorded interview that it intends to adduce; provide information that the accused and his/her lawyer are entitled to view these interviews at a police station or other place nominated by the prosecuting authority; and give the name of the person responsible for arranging this access. This notice must be given at least 14 days before the evidence is given in the proceedings: cl 19D(3). The regulations go on to provide that the accused may then give a written notice requiring access to the recording, which must be given at least seven days before the proceedings, and when that is received the responsible person must give access to the recording within seven days.

[23]As for all other prosecution evidence, a written statement must be served of the evidence to be led; and pursuant to s 76 of the Criminal Procedure Act 1986, where the vulnerable person’s evidence-in-chief is to be by way of recording, then a transcript of that recording may form that written statement. That transcript must be certified by an investigating official as an accurate transcript. Section 76(4) provides that nothing requires the prosecutor to serve a copy of the actual recording of an interview on the accused and his/her lawyer.

[24]Where evidence-in-chief of a vulnerable person is given via recording pursuant to these provisions, the judge must warn the jury not to draw any inference adverse to the accused, or give the evidence any greater or lesser weight because of that procedure being used: s 306X.

Alternative methods of giving evidence in personal assault offences

[25]In personal assault offences, including sexual assault offences, vulnerable persons have a right to give evidence via CCTV: s 306ZB. This applies to all vulnerable persons in proceedings where it is alleged that a person has committed a personal assault offence, and in other proceedings as defined in s 306ZA. This also applies to witnesses between 16 and 18 at the time of trial, who were under 16 the time the charge was laid. The vulnerable person may choose not to use this alternative method and the court may order that it not be used, but only if satisfied that there are special reasons, in the interests of justice, for that not to occur: s 306ZB(5). When giving evidence via this method, vulnerable persons have the same entitlement as adult complainants (see above) to the presence of a support person. The alternative of screens is also available to all vulnerable witnesses as an alternative to CCTV, similar to adult complainants, where CCTV is not available or not chosen by the witness.

[26]Section 306ZL also provides similar provisions to adult complainants preventing examination of a vulnerable witness by an unrepresented accused, with similar provisions about an appointed person asking such questions.

Commentary

While these recordings of vulnerable witnesses can have the advantage of providing a reasonably contemporaneous version of the evidence and preventing further distress to a vulnerable witness, particularly in a sexual assault allegation, procedurally they present considerable difficulties. Almost invariably they contain inadmissible material which must be edited out before the evidence can be played.
The arrangements for access to these videotapes is unwieldy and causes delay in the court process. It is suggested that the limitation on copies being provided to legal representatives should be repealed, that such video tapes should be provided as part of the prosecution brief of evidence like any other piece of evidence, but that the limitations remain on copies being made available to an accused. Further there should be directions requiring these copies to be returned to the court immediately at the conclusion of proceedings and undertakings to that effect given by legal practitioners.
Often these videotaped recordings are poor quality, are hard to hear and not close enough to the witness, particularly when compared ultimately to the way the witness is seen when being cross-examined via CCTV. Better training in recording these videos is required.

Court directions to deal with these procedures

[27]District Court Criminal Practice Note 5 deals with the management of prescribed sexual offence proceedings. It deals with the myriad of practical problems which arise in these trials, particularly given the special procedures which must be adopted. It is suggested that the following additional matters need to be addressed pre-trial, whether in a special callover list or alternatively at the beginning of an individual trial, before the jury is empanelled. Where it seems these issues are likely to take a little while to resolve, the complainant has been allowed to leave the court complex.

Will there be any objections to matters raised in the statement of a complainant? These statements are often very lengthy, written in a discursive style, often with answers given to questions couched in a therapeutic manner rather than styled to present as evidence in a criminal trial and it is not always be clear what portions will and will not be led by the prosecution.
Is this a retrial or subsequent trial and will the evidence be given by previous recording? If so, in what form? Has anyone looked to see if it works in the courtroom? Are there any applications that it not be given in such a way? Are there any applications to exclude portions of that previous recording in general terms?
Will “complaint” evidence be called? If so, is it relied on as complaint or as re-establishing credit? What is it? Are there proper statements setting out exactly what the complaint evidence are alleged to be? Is there any argument about the admissibility of the evidence and if admissible, in what capacity?