Watt & Ors v The Queen [1999] NTSC 13

PARTIES:	WATT, Gary William, EATON, Scott Anthony and KNIGHT, James Scott Parnwell

	v

	THE QUEEN

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NOS:	9712853, 9712979, 9712774

DELIVERED:	12 February 1999

HEARING DATES:	10 February 1999

JUDGMENT OF:	MARTIN CJ.

REPRESENTATION:

Counsel:
	Applicant Watt:	Mr Priest QC
	Respondent:	Mr R Noble

Solicitors:
	Applicant Watt:	Diana Elliott
	Respondent:	DPP

Counsel:
	Applicant Eaton:	Mr Shaw QC
	Respondent:	Mr R Noble

Solicitors:
	Applicant Eaton:	Withnall Maley & Co
	Respondent	DPP

Counsel:
	Applicant Knight	Mr P Loftus
	Respondent	Mr R Noble

Solicitors:
	Applicant Knight:	Withnall Maley & Co
	Respondent:	DPP

Judgment category classification:	     
Judgment ID Number:	mar99005
Number of pages:	7

mar99005
IN SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA

Watt & Ors v The Queen [1999] NTSC 13
Nos. 9712853, 9712979, 9712774

	BETWEEN:

	GARY WILLIAM WATT, SCOTT ANTHONY EATON and JAMES SCOTT PARNWELL KNIGHT
	Applicants

	AND:

	THE QUEEN
	Respondent

CORAM:	MARTIN CJ.

REASONS FOR JUDGMENT

(Delivered 12 February 1999)

[1]	Reasons for decision on application under s21A Evidence Act (1939) NT.
[2]	The charges against the three accused are that they each sexually assaulted Ms H at the same place and over a relatively short period of time by acts of sexual intercourse, digital, penile and oral.  There are five separate such assaults alleged.
[3]	The offences are said to have taken place in May 1997 when Ms H was 19.  The accused are all said to be members of the Hells Angels Motorcycle Club, and the offences are said to have taken place at the premises of the club.
[4]	As I understand it, the major issue in the case, as was mentioned by counsel for the Crown in his opening to the jury, is that of consent.
[5]	Ms H is a “vulnerable witness” within the meaning of s21A(1)(c) of the Evidence Act.  The Crown makes application that a screen be placed to obscure the witness’s view of the accused men, and that she be accompanied by a relative or friend for the purpose of providing emotional support.
[6]	Contrary to similar legislation elsewhere, s21A does not specify any particular reasons why an order or orders might be made under that provision.  It simply identifies the identity of the witness.  Beyond those who are the alleged victims of sexual offence are those who have not attained the age of sixteen years, those suffering from an intellectual disability or a witness, who in the opinion of the Court, is under special disability.  
[7]	It has been common enough practice in this Court for orders under s21A to be made in the case of a witness who is the alleged victim of sexual offences, without there having to be advanced any particular reason for it.  It seems to be accepted, in my experience, by those representing the accused, that if a witness seeks to have special arrangements such as those made, then it may be reasonably inferred that the witness will feel more comfortable if the request is granted.  Such witnesses have special needs which might make it difficult for them to give evidence in the courtroom with all that that entails, including the presence of the accused, disclosure of intimate and distressing matters and potential intimidation by spectators.  But that does not exclude altogether the interests of the accused when Court is considering what the requirements of justice entail in the particular case.
[8]	I note the way Thomas J. put it in West (1990) 51 A Crim R 317 at 320:
“In the context of a trial such as the present, there are two diametrically conflicting explanations why a complainant may not wish the accused person to be looking at her, and why she may have difficulty in giving her evidence if he does.  One is that she is required to relate a very distressing incident in the presence of the very attacker for whom she feels disgust or of whom she is still in fear.  The other is that she is not telling the truth, and the presence of the accused person is embarrassing to her.”
[9]	Here, none of the counsel for the accused has objected to the making of an order under s21A relating to the taking of Ms H’s evidence, their objection has been directed to the means by which that evidence is to be taken and they argue that if the order is to be made, then the evidence should be given in a place outside the courtroom and transmitted to it by means of closed circuit television.  Facilities to enable that to be done are available in this Courthouse.  Counsel for the Crown, opposing that course, suggests that the jury would be disadvantaged in assessing the demeanour of the witness if the evidence were taken by closed circuit television, as opposed to her appearing in person before them on the opposite side of the courtroom in the usual position in the witness box.  It is the contention of counsel for the accused that that there is no such disadvantage, because the jury will have a good view of the witness on the television screens and will be readily able to see her face and mannerisms.  I must say I think that is right, and that any loss of impact from the television images as opposed to the presence of the witness in the courtroom would be minimal.  
[10]	Although it is not a matter of evidence, and perhaps cannot be, counsel for the accused also advance their suggestion by asserting that their impression from experience is that the presence of screens as between the accused and the witness has the potential to cause greater prejudice to the accused.  It is said to underscore the vulnerability of the witness which weighs against the accused.  I am not sure that I should place too much weight upon that submission either.  The fact is, either way, the witness is separated from the accused, and the Court is obliged to give a warning to the jury that the procedure is routine practice of the Court, no adverse inference is to drawn against the accused as a result of the order being made, and the evidence of the witness is not to be given any greater or lesser weight because of the use of such an order (s21A(3)).
[11]	I consider there are advantages to the taking of the evidence by means of closed circuit television as opposed to the screen between the witness box and the dock.  The first is that with the screen, such as are available in this Court, not only can the witness not see the accused, but the accused cannot see the witness.  They are not “one way screens” such as referred to in some of the cases and other material on this subject.  The accused are thus disadvantaged in not being able to see the witness and to give such instructions as they may see fit to give arising from the demeanour of the witness.  Counsel for the Crown points out that the assessment of the demeanour of the witness could be important for the jury and it is no less so in my opinion from the point of view of the accused.  They need not only to hear what she has to say, but see how she is reacting to questions put to her both in examination-in-chief and in cross-examination.  They are unable to assess the full impact of the questioning of the witness without being able to see as well as hear.
[12]	The witness is likely to be under cross-examination for a significant period of time.  Certainly that time will extend beyond one court session, and probably into two days.  To achieve the full objective of separating the witness from the accused visually, it would be necessary for the accused to be out of the dock on every occasion when the witness comes to and leaves the witness box.  That would involve some practical management of the movement of the accused and the witness.  There would be eight movements to and fro by the witness in the course of a normal court day, and on each occasion there is a potential for practical difficulty and disruption to the orderly process of the conduct of the business of the Court.
[13]	Without going into detail here, there are suggestions that if the witness is in Court giving her evidence, then there may be a need for the Court to restrict access to the courtroom.  That would be obviated if she was not giving her evidence in the courtroom.
[14]	Although there may be means of overcoming it, I am informed by counsel for two of the accused that the present arrangements at the bar table are such that if the screen were in place they would have difficulty in seeing the witness.  It might be able to be overcome, but there would certainly be no such problem if closed circuit television were used.
[15]	As I apprehend it, orders which might be made under s21A are within the discretion of the Court.  Many factors may impinge upon the trial Judge’s consideration in individual cases, and I have dealt with those as it seemed to me to be appropriate in the circumstances of this case.
[16]	As a consequence, I ordered that Ms H give her evidence at a place outside the courtroom to be transmitted to the courtroom by means of closed circuit television, that place being the room set aside for that purpose within the precincts of the courthouse; that she be accompanied by a friend whose name has been put forward for the purpose of providing emotional support to her.  Both that person and the witness must be visible during the time that she gives her evidence.  A Sheriff’s officer may also be present in the same room, but need not necessarily be able to be seen at all times.  The arrangements will be such that the vulnerable witness not be able to see any of the accused, except in such circumstances where she may be directed to any one or more of them for the purposes of identification, nor members of the public in the body of the court.  Everyone in the courtroom shall be able to see and hear Ms H give her evidence (s21C).
[17]	In coming to those views I have been assisted by reference to:
•	West (1990) 51 A Crim R 317
•	Sparkes (1996) 88 A Crim R 194
•	Question of Law Reserved (1998) 98 A Crim R 544
•	The Receipt of Evidence by Queensland Courts : The Evidence of Children, Queensland Law Reform Commission Discussion Paper December 1998, Chapter 11.

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