Background
In this case, the accused had been indicted for sexual intercourse and acts of indecency against the complainant, a child. The pre-trial proceeding was conducted under new court-room procedures introduced by the Sexual and Violent Offences Legislation Amendment Bill 2008 (ACT) and included evidence being taken from the child complainant from a remote witness room.
At the pre-trial hearing, the accused had applied for leave to cross-examine the complainant on matters arising out of diaries and other material used by the complainant. Citing time constraints in the pre-trial hearing, brought about by procedural arguments regarding the new procedures, his Honour delivered his decision orally – dismissing the application - without giving reasons. The accused requested the decision in writing.
This ex tempore judgement is a result of that request.
Decision
Justice Refshauge dismissed the application.
Reasoning
In ruling that the accused was not entitled to cross-examine the complainant on the material which he had sought to do so, his Honour considered that there was a long history of the courts opposing the interruption of a criminal trial by rulings and interlocutory rulings. In particular, his Honour rejected the argument that his ruling was decisive to the case, given that cross-examination was still open to the accused and that it could still be completed, regardless of the omission of the particular cross-examination sought.
His Honour then went on to consider the accused’s right to a fair trial under s 21 HRA, holding that this right did not alter his decision. In reaching this conclusion, Justice Refshauge stated that he had considered both the fairness to the accused and to the community, noting that “obviously the fairness to the accused is of more significance because the accused is at greater risk and ultimately bears the burden at the end of the day”(at 32). However, his Honour reasoned that the s 21 HRA does not provide for “a zero-sum game”, as (at 33):
…it is not the position whereby fairness to the complainant reduces fairness to the accused – both can sit comfortably together. The accused has had the opportunity of putting the submissions and they have been put in a strong way by [the accused] and I have made my ruling. He does not lose any right that he has and he is able to proceed.
Comment
Justice Refshauge’s interpretation of the s 21 HRA right to a fair trial is notable for his direct emphasis on the need to balance this right with the rights/interests of all parties to a trial and that fairness to both the accused and the complainant can exist together. |
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