• Introduction
• What are "alternative arrangements"?
• Current law and practice
• Are current provisions adequate?
• Views in previous inquiries and in submissions
• Options for reform
• The Commission's view

INTRODUCTION

6.1 One of the questions raised in Issues Paper 22 was whether alternative arrangements such as screens or closed circuit television¹ should be available for complainants when giving evidence in sexual offence proceedings.² “Such arrangements may help reduce distress and enable a complainant to give evidence more effectively.

6.2 The Commission is of the view that, where an accused is unrepresented, appointing a legal practitioner for the purpose of cross-examining the complainant is preferable to relying on alternative arrangements.³ However, it may be desirable to make such arrangements available whether the accused is represented or not. This chapter discusses the advantages and disadvantages of using alternative arrangements in sexual offence proceedings generally.

WHAT ARE “ALTERNATIVE ARRANGEMENTS”?

6.3 Ordinary court procedure may not accommodate the needs of all witnesses. For example, a witness may find it distressing being in the same room as the accused to such an extent that he or she is unable to give evidence effectively. It may be possible to depart from ordinary court procedure in order to accommodate the interests of such a witness, using arrangements such as closed circuit television, screens or other physical arrangements. It is, however, essential that such accommodation should not undermine the fairness of the trial.

Closed circuit television

6.4 Closed circuit television involves the transmission of video and audio signals from one site to another. The witness is able to give evidence from a remote location, usually a room within the court precincts, which is equipped with the appropriate technology. The evidence is transmitted to the courtroom from the remote site, so the court can see and hear the witness.

6.5 Sixty-six (66) out of 171 locations around New South Wales currently have remote witness facilities. Most of these facilities were installed to enable child witnesses to give evidence using closed circuit television in sexual offence proceedings, but they there is no reason why they cannot also be used by adult witnesses.⁴

Screens and other physical arrangements

6.6 A mobile screen can be used to obstruct a witness’ view of the accused. Other physical arrangements may be used to facilitate this, such as a special seating arrangement. Screens have been available in all courts across New South Wales since 1992.⁵

CURRENT LAW AND PRACTICE

Child witnesses

6.7 Section 18(1) of the Evidence (Children) Act 1997 (NSW) provides that child witnesses are entitled to give evidence by closed circuit television. “The child can choose not to give evidence by these means,⁶ and the court has power to order that the child’s evidence should not be given by these means if the interests of justice or the urgency of the matter so dictate.⁷ If the courtroom does not have closed circuit television facilities, the court must make alternative arrangements in order to restrict contact (including visual contact) between the child and accused. This may include the use of screens and planned seating arrangements.⁸ Alternatively, the court may adjourn proceedings to another place to enable the child to give evidence by closed circuit television.⁹

Adult witnesses

6.8 The common law generally requires that a witness be physically present in the courtroom and be in the presence of the accused at the time of giving testimony.¹⁰ However, the court has the power to make alternative arrangements for giving evidence at common law and, to a limited extent, under statute.

At common law

6.9 A court has the inherent power to control its proceedings. This includes the power to make alternative arrangements for a witness to give evidence.¹¹ In exercising its discretion, the court will assess whether such an arrangement advances the course of justice.¹²

6.10 In the English case of R v Smellie,¹³ the accused was ordered to sit on the stairs going out of the dock, obscuring him from the complainant’s sight while she gave evidence. On appeal, the court held that it is in the interests of justice for the judge to prevent the complainant from seeing the accused where the judge considers that the presence of the accused would intimidate the witness. In R v West,¹⁴ the Supreme Court of Queensland affirmed the power at common law to direct that an accused be obscured from the view of a witness. In R v Ngo,¹⁵ the New South Wales Supreme Court confirmed that special arrangements for giving evidence can be made, in appropriate cases, to ensure that the accused cannot see the witnesses or vice versa. In that case, special arrangements were made for two witnesses who feared giving evidence against the accused to give that evidence by closed circuit television. The court ordered that the television be visible to the jury but not to the accused, so the accused could not identify the witnesses.

Under statute

6.11 Section 26(a) of the Evidence Act 1995 (NSW) provides that the court “may make such orders as it considers just in relation to the way in which witnesses are to be questioned”. Further, s5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) provides:

A NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.

6.13 The original purpose of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) was to enable New South Wales to participate in a uniform scheme for taking evidence from witnesses who were in another participating State. It aimed to help courts overcome the tyrannies of distance within Australia by reducing costs of travel and use of court time.¹⁸ In 2000, the Act was extended to cover places within New South Wales and places outside Australia.¹⁹ It now applies to any proceedings, including criminal proceedings, in or before a New South Wales Court.²⁰ In 2001, the Act was further amended to facilitate its use in criminal proceedings.²¹ The 2001 amendments aimed to reduce the risks and costs associated with inmate transportation by enabling people to give evidence while in custody – for example in bail proceedings,²² where (at least in the Supreme Court) the evidence of applicants is routinely given by video link.

Use of alternative arrangements in practice

6.14 While there have been some positive evaluations of the use of closed circuit television in court proceedings in the context of child witnesses,²³ the New South Wales Legislative Council Standing Committee on Law and Justice has reported that people in the justice system are unwilling to embrace the technology, and that this is a serious impediment to its use.²⁴ There remains a strong preference for having witnesses physically present when giving evidence. The Committee has also separately reported that, despite a child’s statutory right to give evidence using closed circuit television, the use of such technology is “far from consistent”.²⁵ One study reported that the use of closed circuit television was refused in 43% of the child sexual assault cases that went to trial.²⁶ The use of closed circuit television in trials will, no doubt, increase as resources expand and people in the legal system become more comfortable with the technology.²⁷

6.15 Anecdotal information indicates that screening and other physical arrangements, which have been available far longer than closed circuit television, are rarely used.²⁸ One reason is that a screen may not be sufficient to reduce a complainant’s distress, as the complainant can still hear the accused and is aware of the accused’s physical proximity. In the context of child witnesses, one study reported that screening is an unpopular and ineffective response to witness distress.²⁹ The Children’s Evidence Taskforce also reported that it “had significant doubts about the benefits of using screens to shield a child witness from the accused”.³⁰ It observed:

There is very little support within the legal profession for the use of screens as it is felt that the use of screens gives a strong impression of guilt and so is highly prejudicial to the accused. It is also argued that use of screens can upset the dynamics of the proceedings, make the logistics of questioning the witness more difficult and diminish the audibility of the witness within the courtroom. There may also be difficulties involved in ensuring that the witness’ view of the accused is obstructed while still ensuring that the jury is able to see the witness.³¹

ARE CURRENT PROVISIONS ADEQUATE?

6.17 There is wide power in the existing law of New South Wales for courts to authorise the giving of evidence by alternative arrangements in sexual offence, as in other, proceedings.³⁴ In particular, the recent amendments to the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)³⁵ may suggest that it unnecessary for New South Wales to enact special legislation for the benefit of adult complainants in sexual offence (or other) proceedings. On the other hand, it may be argued that these provisions, which are clearly not specifically aimed at the use of alternative arrangements by complainants in sexual offence proceedings, neither facilitate the use of such arrangements nor go far enough as far as sexual offence proceedings are concerned. At the moment, the prosecution has to apply to use the arrangement, and must convince the judge that the arrangement is warranted by the special circumstances of the case. Additionally, the availability of alternative measures may be subject to a number of qualifications.

6.18 Every State and Territory in Australia other than New South Wales has legislation variously facilitating the use of alternative arrangements by vulnerable witnesses.³⁶ This accords with developments in common law jurisdictions overseas.³⁷

6.19 The arguments in favour of making alternative arrangements specifically available to complainants in sexual offence proceedings (whether the accused is represented or not) centre on the distinctive nature of sexual offence proceedings.³⁸ There is also an argument in favour of making alternative arrangements available in such cases based on the notion of the fairness of the trial.³⁹

The distinctive nature of sexual offence proceedings

6.20 Complainants often find being in the same room as the accused one of the most difficult aspects of the trial process.⁴⁰ Physical proximity to the accused can be very distressing, especially where the courtroom itself is small.⁴¹

6.21 These arguments suggest that distress to complainants is reduced where they know that alternative arrangements for giving evidence will be available as a matter of course. Indeed, there is some evidence that complainants find giving evidence using closed circuit television less onerous than giving evidence in court in the presence of the accused.⁴² Taking the complainant’s evidence from a remote location physically separates the complainant from the accused, prevents unnecessary contact between them and enables the complainant to give evidence more accurately.⁴³ It is also asserted, but without any empirical evidence, that obscuring the accused from the complainant’s sight using a mobile screen also reduces the complainant’s distress.⁴⁴

Impact on the fairness of the trial

6.22 The most important arguments surrounding the use of alternative arrangements in sexual offence proceedings deal with the possible impact of such arrangements on the fairness of the trial. It must be remembered “that the fairness of any trial is necessarily judged on a case by case basis and that the trial judge’s power to control proceedings includes the power to stay proceedings where the accused cannot, in the circumstances, be given a fair trial.⁴⁵

6.23 On the one hand, the fairness of the trial may require the use of alternative arrangements in order to enable the complainant to give evidence accurately in those circumstances where the complainant’s apprehension of giving evidence in front of the alleged attacker compromises the reliability of the evidence. In an English sexual assault case, a screen was placed to obscure the complainants from seeing or being seen by the accused. The Lord Chief Justice stated:

The learned judge has the duty on this and on all other occasions of endeavouring to see that justice is done. Those are high sounding words. What it really means is, he has got to see that the system operates fairly: fairly not only to the defendants but also to the prosecution and also to the witnesses. Sometimes he has to make decisions as to where the balance of fairness lies … In the circumstances the necessity of trying to ensure that these children would be able to give evidence outweighed any possible prejudice to the defendants by the erection of the screen.⁴⁶

6.25 On the other hand, the use of alternative arrangements may, in the circumstances of the case, prejudice:

• the defence case;
• the case for the prosecution;
• the flow of the proceedings; and
• the jury’s perception of the case.

6.26 Concerns have been expressed that allowing a complainant to give evidence from a remote location may disadvantage the accused.⁴⁸ Video screens, which are generally not large and usually show the witness from the shoulders up,⁴⁹ are seen from a distance. The witness’ total body language is obscured. A proper assessment of the demeanour, reliability and credibility of an untruthful witness is, therefore, difficult.

6.27 In R v Yates,⁵⁰ the Court of Criminal Appeal held that the trial judge in a murder case had properly exercised his discretion, under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), to allow a witness to give evidence by way of closed circuit television in circumstances where the witness was so concerned for her health and that of her unborn child that she was distracted from properly addressing the factual issues on which she could give evidence. The witness was regarded by the accused (one of whom was her de facto spouse) their families and associates as having provided assistance to the police and authorities. While acknowledging that giving evidence by video-link may well impose disadvantages in cross-examination because of its tendency to obscure the demeanour of an untruthful witness, the Court pointed out that the administration of justice also has an interest in promoting the reliability of evidence. Here greater reliability was possible if closed circuit television was used. The Court further emphasised the need “to keep the appearance and demeanour of a witness in perspective, and to weigh that aspect in the light of the more objective considerations”.⁵¹

The prosecution case

6.28 The difficulties that closed circuit television present for the assessment of the demeanour, reliability and credibility of a witness may also impact adversely on the prosecution case.⁵² On the one hand, a conviction may be more likely if the witness is less distressed, and hence able to give evidence more confidently and more effectively. On the other hand, a conviction may be less likely if the jury fails to develop a rapport with the witness: “the evidence may have an appearance of artificiality and a jury may not have the same degree of sympathy for a person whom they see only on a television screen rather than in person.”⁵³ Arguably, the use of closed circuit television reduces the impact of the complainant’s testimony on the jury.⁵⁴ For these reasons, allowing a complainant to give evidence from a remote location may disadvantage the prosecution case.⁵⁵

Flow of proceedings

6.29 Use of closed circuit television may delay proceedings. For example, if the person asking the questions wishes to show the complainant a document or photograph, there will be a delay while it is taken from the courtroom to the remote site, a delay which is reduced by the use of fax machines. “Where there is a delay, this interrupts the flow of evidence, which in turn may influence the impression the complainant’s evidence makes on the jury.⁵⁶

The jury’s perception of the case

6.30 Use of closed circuit television may also create an adverse impression on jury members, as we have seen in para 6.26-6.28. Further, the jury may infer that the necessity for these measures arises because the accused is guilty, or, for example, that the accused is violent.⁵⁷ Such adverse impression may, of course, be overcome by issuing an appropriate warning to the jury.

VIEWS IN PREVIOUS INQUIRIES AND IN SUBMISSIONS

6.31 Previous inquiries have consistently recommended making alternative arrangements available to complainants in sexual offence proceedings. Use of closed circuit television has been raised or recommended in studies by the New South Wales Bureau of Crime Statistics and Research,⁵⁸ the New South Wales Sexual Assault Committee,⁵⁹ the New South Wales Legislative Council Standing Committee on Social Issues⁶⁰ and the Australian Law Reform Commission.⁶¹ Use of screens to remove the accused from the complainant’s line of sight has been recommended by the New South Wales Sexual Assault Committee⁶² and the Australian Law Reform Commission.⁶³

6.32 Submissions to the Commission overwhelmingly expressed the view that alternative arrangements should be more readily available for complainants giving evidence in sexual offence proceedings.⁶⁴ Suggestions included the use of closed circuit television, screens, alternative seating arrangements, closed courts, support persons, non-publication orders, scheduled breaks, written rather than oral evidence and pre-recorded evidence. Most submissions were in favour of making closed circuit television available to complainants giving evidence in sexual offence proceedings.⁶⁵

6.33 Some submissions argued that such arrangements should be available in all sexual offence cases, whether the accused is represented or not.⁶⁶ “Some argued that complainants should be entitled to the use of alternative arrangements,⁶⁷ while others were of the view that such arrangements should be available in the judge’s discretion.⁶⁸

6.34 Most submissions put the argument in favour of the use of alternative arrangements on the basis that such arrangements can enhance the quality of a complainant’s evidence by reducing fear and distress, thereby promoting the overall fairness of the trial.⁶⁹

OPTIONS FOR REFORM

6.35 One option would be to extend the application of the provisions dealing with child witnesses to adult complainants in sexual offence proceedings. This would give complainants the right to use alternative arrangements, subject to the court’s discretion not to allow them where it is not in the interests of justice to do so.⁷⁰

6.36 Alternatively, there could be specific legislation providing for the use of alternative arrangements by witnesses who are likely to be so intimidated, distressed or embarrassed that they are unable to give evidence effectively. Alternative arrangements are available in several other jurisdictions on this basis.⁷¹

6.37 A third option would be to include an objects statement in the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to facilitate the use of “closed circuit television by complainants in sexual offence proceedings. Although the courts have confirmed that section 5B authorises the use of closed circuit television by intimidated witnesses, the legislation was enacted for quite different purposes,⁷² and makes no mention of the technology being used to minimise distress or to prevent unnecessary contact between a witness and accused. An objects statement may be a simple means of encouraging courts to allow complainants in sexual offence proceedings to give evidence from a remote location.

THE COMMISSION’S VIEW

6.38 The Commission is of the view that alternative arrangements for giving evidence should be readily available for complainants in sexual offence proceedings, whether the accused is represented or not. Such arrangements can help reduce distress and can enable a complainant to give evidence more accurately.

6.39 The Commission has concluded that the best means of giving effect to this view is to make alternative arrangements available to adult complainants in sexual offence proceedings on a basis resembling their availability to child witnesses under s18 of the Evidence (Children) Act 1997 (NSW). This would give complainants a statutory right to use alternative arrangements, subject to the court’s discretion not to allow them where it is not in the interests of justice to do so.

6.40 Closed circuit television is the preferred solution to assist complainants giving evidence. Enabling a complainant to give evidence from a location outside the courtroom prevents unnecessary contact between the complainant and accused. However, closed circuit television should not be used if the complainant does not wish to use it, or if the court is satisfied that it is not in the interests of justice for the complainant’s evidence to be given by such means.

6.41 Screens and other alternative physical arrangements should continue to be available in the court’s discretion. They may be used where closed circuit television facilities are not available and their use does not prejudice the fairness of the trial. Alternatively, the court should adjourn proceedings to another place to enable the complainant to give evidence by closed circuit television. It is not appropriate for screens to be used where an unrepresented accused is conducting his or her case in person. The accused must be able to observe everything, including the demeanour and behaviour of all witnesses who give evidence (including the complainant).

6.42 Any adverse impression created by the departure from ordinary court procedure must be overcome by issuing an appropriate warning to the jury. The judge should inform the jury that it is standard procedure in such cases for alternative arrangements to be used when complainants give evidence, and should warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of the arrangement.

RECOMMENDATION 10
• A complainant who gives evidence in proceedings for a sexual offence should be entitled to give evidence by means of closed circuit television unless the court orders that such means not be used. The court should only make such an order if it is satisfied that it is not in the interests of justice for the complainant’s evidence to be given by such means.
• If a court is not equipped with closed circuit television facilities, the court should be able to adjourn the proceedings or any part of the proceedings to a place that is equipped with such facilities so the complainant’s evidence may be given by such means.
• If the complainant does not give evidence by means of closed circuit television, the court may, if the interests of justice so require, make alternative arrangements for the giving of evidence by the complainant in order to restrict contact (including visual contact) between the complainant and the accused. Such arrangements may include the use of screens, planned seating arrangements or the adjournment of the proceedings or any part of the proceedings to other premises.
• A complainant may choose not to use any alternative arrangements, including closed circuit television.
• Where a complainant gives evidence using alternative arrangements, the judge should inform the jury that it is standard procedure for complainants’ evidence in such cases to be given by those means, and warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of the arrangements.

1. The Evidence (Children) Act 1997 (NSW) uses the term “closed circuit television”, whereas the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) uses the term “audio visual link”. The two terms are used interchangeably in this Report.

2. NSW Law Reform Commission, Questioning of complainants by unrepresented accused in sexual assault trials (Issues Paper 22, 2002), Issues 13 and 14.

3. See para 3.63-3.64, 5.18-5.21.

4. There are 420 courtrooms in New South Wales, throughout 171 locations. “103 courtrooms in 66 locations have remote witness facilities. Information supplied by A Nasser, NSW Attorney General’s Department (1 April 2003).

5. NSW Attorney General’s Department, Report of the children’s evidence taskforce: taking evidence in court (1994) at para 3.8.

6. Evidence (Children) Act 1997 (NSW) s18(2).

7. Evidence (Children) Act 1997 (NSW) s18(4).

8. Evidence (Children) Act 1997 (NSW) s 24.

9. Evidence (Children) Act 1997 (NSW) s 22.

10. R v Dunne (1929) 21 Cr App R 176; R v Reynolds [1950] 1 KB 606.

11. R v West [1992] 1 Qd R 227 at 230 (Thomas J); R v Smellie (1919) 14 Cr App R 128; R v Sparkes (Tasmania, Supreme Court, No 47 of 1996, A58/1996, 1October 1996, unreported); Park v Citibank Savings Ltd (1993) 31 NSWLR 219; R v DJX (1990) 91 Cr App R 36 at 41 (Hutchison LCJ).

12. Park v Citibank Savings Ltd at 225 (Powell J).

13. R v Smellie at 130 (Coleridge J).

14. R v West at 230-231 (Williams J).

15. R v Ngo [2001] NSWSC 339 at para 20 (Dunford J).

16. Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B(2).

17. Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B(3).

18. NSW, Parliamentary Debates (Hansard) Legislative Council, 14 October 1998, the Hon J Shaw, Attorney General, Second Reading Speech, at 8187.

19. Evidence (Audio and Audio Visual Links) Amendment Act 2001 (NSW). “See NSW, Parliamentary Debates (Hansard) Legislative Council, 5 April 2000, the Hon I MacDonald, Parliamentary Secretary, Second Reading Speech, at 4098.

20. Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5A(1).

21. Evidence (Audio and Audio Visual Links) Amendment Act 2001 (NSW).

22. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 25 June 2001, Mr Crittenden, on behalf of the Hon R J Debus, NSW Attorney General, Second Reading Speech, at 15238.

23. See Australian Law Reform Commission, Children’s evidence: closed circuit TV (Report 63, 1992); C Eastwood and WPatton, The experiences of child complainants of sexual abuse in the criminal justice system (Queensland University of Technology, 2002); CO’Grady, ¤Child witnesses and jury trials: an evaluation of the use of closed circuit television and removable screens in Western Australia (WA Ministry of Justice, 1996) at 150; Parliament of NSW, Legislative Council, Standing Committee on Law and Justice, Report on child sexual assault prosecutions (Report 22, 2002).

24. Parliament of NSW, Legislative Council, Standing Committee on Law and Justice, Report on child sexual assault prosecutions (Report 22, 2002) at para 6.63 and 6.72.

25. Parliament of NSW, Legislative Council, Standing Committee on Law and Justice, Report on child sexual assault prosecutions (Report 22, 2002) at para 6.66.

26. Eastwood and Patton at 55.

27. See NSW Legal Aid Commission, Submission at 7.

28. See NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 9; NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern region), Submission. Compare however, The Victorian Bar, Submission at para 4.3.

29. See Eastwood and Patton at 118.

30. NSW Attorney General’s Department, Report of the children’s evidence taskforce: taking evidence in court (1994) at para 6.2.8.

31. NSW Attorney General’s Department, Report of the children’s evidence taskforce: taking evidence in court (1994) at para 5.2.21. This is consistent with a Western Australian study on child witnesses, which found that most judges and witnesses, and many counsel, preferred closed circuit television over screens: CO’Grady, Child witnesses and jury trials: an evaluation of the use of closed circuit television and removable screens in Western Australia (WAMinistry of Justice, 1996) at para 10.3. Judges’ reasons were “that removable screens do not remove as many sources of stress for the witness, and that screens are more likely to be interpreted as being prejudicial to the accused”: at para 8.4. “The report concluded that, “screens are not an adequate substitute for closed circuit television”, Recommendation E-1.

32. NSW Legal Aid Commission, Submission at 7.

33. NSW Legal Aid Commission, Submission at 7; Law and Justice Foundation of NSW, Submission at 2-3.

34. See para 6.11-6.13.

35. See para 6.13.

36. See Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 4-6; Evidence Act 1939 (NT) s 21A; Evidence Act 1977 (Qld) s 21A; Evidence Act 1929 (SA) s 13; Evidence Act 1910 (Tas) s 122I; Evidence Act 1958 (Vic) s 37C; Evidence Act 1906 (WA) s106N, 106R.

37. For example, a range of special measures are available to adult sexual assault complainants under the Youth Justice and Criminal Evidence Act 1999 (UK). See L Hoyano, “Striking a balance between the rights of defendants and vulnerable witnesses: will special measures directions contravene guarantees of a fair trial?” [2001] Criminal Law Review 948; JTemkin, _Rape and the legal process (2nd edition, Oxford University Press, 2002) at 318-320.

38. See also para 2.2-2.11.

39. See also para 3.23-3.25.

40. See above at para 2.5.

41. NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern region), Submission.

42. Many of the evaluations of closed circuit television focus on child witnesses, for example Parliament of NSW, Legislative Council, Standing Committee on Law and Justice, Report on child sexual assault prosecutions (Report 22, 2002); Australian Law Reform Commission, Children’s evidence: closed circuit TV (Report 63, 1992); C Eastwood and WPatton, The experiences of child complainants of sexual abuse in the criminal justice system (Queensland University of Technology, 2002); CO’Grady, _Child witnesses and jury trials: an evaluation of the use of closed circuit television and removable screens in Western Australia (WA Ministry of Justice, 1996) at 150. However, there is also support for the use of closed circuit television by certain adult witnesses. For example, see ACT Law Reform Commission, Report on the laws relating to sexual assault (Report 18, 2001); United Kingdom Home Office, Speaking up for justice: report of the interdepartmental working group on the treatment of vulnerable or intimidated witnesses in the criminal justice system (Home Office, 1998) at para 8.3 to 8.8.

43. Westmead Sexual Assault Service, Submission at 4.

44. See R v West [1992] 1 Qd R 227 at 231 (WilliamsJ); R v Sparkes (Tasmania, Supreme Court, No 47 of 1996; A58/1996, UnderwoodJ, 1 October 1996, unreported); R v DJX (1990) 91 Cr App R 36 at 40. In England, the courts have indicated some reluctance to allow adult witnesses to use screens: see R v Cooper [1994] Criminal Law Review 531. However, their use has been approved by the Court of Appeal in R v Foster [1995] Criminal Law Review 333 and by the European Commission of Human Rights in X v United Kingdom (1993) 15 ECHR 113.

45. See para 3.24.

46. R v DJX at 40 (Hutchison LCJ).

47. R v DJX at 41 (Hutchison LCJ).

48. See ACT Law Reform Commission, Report on the laws relating to sexual assault (Report 18, 2001) at para 87. In the context of child witnesses, see Parliament of NSW, Legislative Council, Standing Committee on Law and Justice, Report on child sexual assault prosecutions (Report 22, 2002) at para 6.41-6.44.

49. Parliament of NSW, Legislative Council, Standing Committee on Social Issues, Sexual violence, addressing the crime: inquiry into the incidence of sexual offences in NSW: part II (Report 9, 1996) at 164.

50. R v Yates [2002] NSWCCA 520 (20 December 2002).

51. R v Yates at para 218 (20 December 2002).

52. See Parliament of NSW, Legislative Council, Standing Committee on Law and Justice, Report on child sexual assault prosecutions (Report 22, 2002) at para 6.45-6.46.

53. ACT Law Reform Commission, Report on the laws relating to sexual assault (Report 18, 2001) at para 87. See also CEastwood and W Patton, The experiences of child complainants of sexual abuse in the criminal justice system (Queensland University of Technology, 2002).

54. See Australian Law Reform Commission, Children’s evidence: closed circuit TV (Report 63, 1992) at 30.

55. See ACT Law Reform Commission, Report on the laws relating to sexual assault (Report 18, 2001) at para 85.

56. ACT Law Reform Commission, Report 18 at para 86.

57. ACT Law Reform Commission, Report 18 at para 87.

58. NSW Bureau of Crime Statistics and Research, The criminal justice response to sexual assault victims (General Report Series, 1996) at 44, 53.

59. NSW, Sexual assault phone-in report (NSW Sexual Assault Committee, 1993) at 43.

60. Parliament of NSW, Legislative Council, Standing Committee on Social Issues, Sexual violence, addressing the crime: inquiry into the incidence of sexual offences in NSW: part II (Report 9, 1996) at 166 and Recommendation 54.

61. Australian Law Reform Commission, Equality before the law: justice for women (Report 69, Part I, 1994). The Commission recommended closed circuit television be provided for witnesses “in all cases in which witnesses may suffer emotional trauma or be intimidated or distressed or unable to give evidence by reason of the subject matter of the evidence, particularly in domestic violence and sexual assault cases”: Recommendation 7.8.

62. NSW, Sexual assault phone-in report (NSW Sexual Assault Committee, 1993) “at 43, 45.

63. “At the very least, screens could be provided to remove the offender from the victim’s line of vision while she gives evidence … Having the offender out of sight eases the strain on the victim and can give a woman confidence that she is being listened to”: Australian Law Reform Commission, Equality before the law: justice for women (Report 69, PartI, 1994) at para 7.32.

64. NSW Legal Aid Commission, Submission at 7; NSW Director of Public Prosecutions (N Cowdery), Submission at 5; Law Society of NSW, Submission at 2; Law and Justice Foundation of NSW, Submission at 2-3; NSW Department for Women, Submission at 7-8; Women’s Legal Resources Centre, Submission at 4; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 8; Westmead Sexual Assault Service, Submission at4; Illawarra Area Health Service, Submission at 3; Macquarie Area Health Service, Submission at 2; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at 4; Central Coast Health, Submission at 3; Hawkesbury Nepean Community Legal Centre, Submission at 4; NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern region), Submission and D Purcell, Submission at 5.

65. NSW Legal Aid Commission, Submission at 7; NSW Director of Public Prosecutions (N Cowdery), Submission at 6; Law Society of NSW, Submission at 2; Law and Justice Foundation of NSW, Submission at 2; NSW Department for Women, Submission at 7; Women’s Legal Resources Centre, Submission at 4; Illawarra Area Health Service, Submission at 3; Macquarie Area Health Service, Submission at 2; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at 4; Hawkesbury Nepean Community Legal Centre, Submission at 4; NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern region), Submission.

66. Law and Justice Foundation of NSW, Submission at 2.

67. NSW Director of Public Prosecutions (N Cowdery), Submission at 5; Law and Justice Foundation of NSW, Submission at 3; NSW Department for Women, Submission at 8; Women’s Legal Resources Centre, Submission at 4; NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 9; Illawarra Area Health Service, Submission at 3; Macquarie Area Health Service, Submission at 2; Dubbo/Wellington Women’s Domestic Violence Court Assistance Scheme, Submission at 4; NSW Attorney General’s Department Regional Violence Against Women Specialist Unit (Southern region), Submission.

68. NSW Legal Aid Commission, Submission at 8; NSW Public Defenders (P Zahra and C Loukas), Submission at 4.

69. NSW Attorney General’s Department Violence Against Women Specialist Unit, Submission at 3; Westmead Sexual Assault Service, Submission at 1; Women’s Legal Resources Centre, Submission at 2; Illawarra Area Health Service, Submission at 1; NSW Department for Women, Submission at 3.

70. See Evidence (Children) Act 1997 (NSW) s 18.

71. See Evidence Act 1977 (Qld) s 21A; Evidence Act 1929 (SA) s 13; Evidence Act 1910 (Tas) s 122I; Evidence Act 1906 (WA) s106N, 106R.m

72. See para 6.13.