HKSAR v. SHAMSUL HOQUE

HCCC 379/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 379 OF 2013

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REASONS FOR RULING

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Introduction

1. The defendant in this case stands accused by the complainant of having raped her and is about to go on trial before a jury in the Court of First Instance.  The complainant has previously been granted an anonymity order pursuant to s 156 of the Crimes Ordinance, Cap 200, and is to be referred to as “X”.

2. An application has been made by the prosecution for the complainant to enter and leave the courtroom without going through the public gallery and to give her evidence behind a screen so that she is shielded from view by members of the public gallery.  The defendant opposes the application for the screen on the basis that it will be prejudicial to him.

Prosecution application for a screen

3. The prosecution submit that the complainant suffers from emotional distress and post-traumatic stress order, and is worried and feels under great pressure about giving her testimony in front of members of the public.  It is submitted that the complainant’s evidence is embarrassing and sensitive and by testifying before the eyes of the public this could add considerable stress to her, and intimidate her, and inhibit her as she recounts intimate details in court.  The prosecution submit that the proposed arrangements will not cause any prejudice to the defendant, and in any event, any concerns can be allayed by a direction from the judge to the jury that the screen has been put up to spare the witness of having to recount intimate details while members of the public watch on and that they should not hold that against the defendant in any way.

Cases on screens

4. It is worthwhile examining the trilogy of cases that are commonly referred to when addressing, or more particularly when opposing, the use of a screen by a witness when giving evidence.  The cases go back some 20 years and were concerned with initially a child, and later an adult, giving evidence behind a screen that separated him or her from the defendant.  These cases must be understood in light of the fact that they dealt with a situation where the defendant could not see the witness who gave evidence against him.  They therefore engaged the issue of the right of an accused to confront his accuser.[1] This does not apply when the screen is used to shield the witness from the public and not the accused.

5. The first case is R v X, Y and Z (1990) 91 Cr App R 36 where the English Court of Appeal were concerned with a complaint that the use of a screen with a child witness would act in a prejudicial way to the defendants in the trial.  It was suggested that the jury might have been readily influenced and unfairly prejudiced against the defendants by seeing the screen there, and that the jury might think that there was a suggestion that the persons in the dock had already in some way intimidated the child who was going to give evidence.  The Court rejected the complaint by acknowledging that a fair trial meant fair to all: the defendant, the prosecution and the witnesses.  In that case, the three defendants were charged with serious sexual offences against a number of young boys and girls. The Court observed from experience that in such cases children were shown to be reluctant to give evidence, and that cases in the past had collapsed because the children were unwilling or, unable to speak as to the facts about which they were expected to speak.  At trial, a screen was erected in court so as to prevent the child witnesses from seeing or being seen from the dock.  It was on this basis that the Court considered the issue and rejected there was prejudice to the defendants.  The Court 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. He came to the conclusion that in these 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.

The Court agrees with him in that view. We do not think, even without the warning which the learned judge did give to the jury, that any sensible jury could have been prejudiced against any defendant by the existence of this barrier between the witnesses and the dock. But at the outset of the trial the judge said this:

‘ Do not allow the mere presence of the screen in any way to prejudice you against any of the defendants. The purpose of the provision of those screens is in an endeavour to prevent children from being intimidated by their surroundings. I think you can understand yourselves, those of you who have young children, to have to come in front of a court of this sort is bound to be a matter which is somewhat frightening perhaps and certainly not an experience they enjoy. Do not hold that fact against any of the defendants. You will decide the case on the evidence, that is to say that which is said before you and the documents which are placed before you.’

…

We take the view that we do not need authority to confirm us in the view that what the learned judge here did in his discretion was a perfectly proper, and indeed a laudable attempt to see that this was a fair trial: fair to all, the defendants, the Crown and indeed the witnesses.”[2]

6. The second case is R v Cooper and Schaub [1994] Crim LR 531, where the English Court of Appeal at that time observed that the use of screens had been confined to child witnesses but there had been occasions when such protection had been afforded to adult witnesses.  This case is commonly relied on to oppose an application for the use of a screen but it needs to be read in light of subsequent decisions.  The Court stated that the use of a screen was prejudicial to the defendant even where an appropriate direction was given and went on to emphasise that the decision for the use of a screen for a witness was within the discretion of the judge but should only be used in the most exceptional cases where an adult was giving evidence.  Given the reliance placed on this decision, I set out the relevant part of the judgment of the court given by Farquharson LJ where he states:

“ The provision of such screens had become more frequent during the past few years. Generally speaking the point was to protect the witness from any form of eye contact or sense of presence of the person charged.

Such cases had, generally, been confined to children giving evidence but screens had been used with adults.

Undoubtedly a judge had a discretion whether he would allow such a protective unit to be put in place. It was his duty to ensure that justice was done. If that could not be achieved without the witness having some form of protection, it was appropriate for the judge to make the necessary order, see R v X Y and Z ((1989) 91 Cr App R 36).

While one could see the risk that might arise where children were concerned, they might be inhibited or overawed in court, such protection was not obvious where a witness concerned was adult.

There could be little doubt that the use of screens was prejudicial to the accused person, even where a jury was properly warned not to make any assumptions adverse to that person about the presence or use of the screen. The very fact that screens were being employed suggested to a jury that there was need for the witness to be protected in some way from any contact, even only visual contact, with that person. He was to some extent at a disadvantage in as much as such protection was, at any rate, considered to be desirable.

Accordingly, in their Lordships’ judgment it should only be in most exceptional cases that such apparatus should be used when an adult was giving evidence. By no means every case of rape or prosecution for sexual offences should involve the use of screens.

The present case involved a woman aged 21 having to give evidence of an exceptionally unpleasant kind, involving multiple rape.  The judge gave the jury the necessary warning.  The decision was undoubtedly very much in the judge’s discretion and it was impossible to say that the discretion was exercised unlawfully or in a way which could not reasonably be supported.”

7. The third case is R v Foster [1995] Crim LR 333, where at trial a screen was used to separate the witness from the defendant.  The English Court of Appeal explained that the comments in Cooper and Schaub were not intended to depart from the test in X, Y and Z, namely that is was the judge’s duty to endeavour to see that justice was done.  The Court held that a warning to the jury not to read anything adverse to the defendant into the fact that the witness was giving evidence from behind a screen resulted in no real danger of prejudice to the defendant.  In the commentary to the case, it was clear that the underlying concern of the courts was the impact this would have on the right of confrontation, and the case of R v Taylor and Crabb [1995] Crim LR 253 was referred to where the prosecution sought a witness to give evidence anonymously.  In that case, the Court agreed that “the fundamental right of a defendant to see and know the identity of his accusers” should only be denied in rare and exceptional circumstances but went on to point out that the matter was pre-eminently one for the discretion of the judge.  It was noted that the Court in the present case saw little strength in the argument that screens were per se prejudicial to the defendant because the jury may draw the inference that the witness requires protection from him.  It was also noted that as the use of screens became more common and people got used to them, the Court considered that the jury would eventually be no more inclined to draw an inference from a screen around the witness than from the fact that the defendant appears in the dock.

8. There is another case that is worth mentioning and that is R v Paul T, Action No 2000/1263/Y1, 13 November 2000, unreported, which also involved a screen being placed between the complainant when giving evidence and the defendant.  The Court held in those circumstances that an appropriate warning by the judge was sufficient to avoid any unwarranted prejudice to the defendant.  The Court explained:

“ 16. The warning that he promised to give and that he did give was this. The screens were simply there to allay the anxiety of a witness who was giving delicate evidence, and it was not unusual for screens to be used and that their use must not be held against the defendant. In our judgment, that was an entirely satisfactory warning for the jury to be given.

17.  In the experience of this Court in recent years there has been no reason to doubt the efficacy of such warning.  It is the evidence upon which juries focus in trials of this nature and not the trappings of the courtroom.  Of course the court must be alive to the dangers of prejudice, but an astute jury will recognise that the presence of a screen is entirely consistent with the innocence of a defendant.  There is no reason to believe that this jury was distracted from the real nature of its task, which was to weigh up the evidence before deciding whether it was sure of the prosecution’s case.  We have concluded that there is no reason to doubt the safety of these convictions….” 

9. As is apparent from the brief analysis of these cases, they are concerned with a situation where the witness is screened from the defendant and therefore engage the right of the accused to face his accuser.  That is not the situation here. The witness is to be screened from the public. It does, however, raise the principle of open justice which I will address, but before I do, I will set out the arguments advanced by the defendant in opposing this application.

Defence opposition to a screen

10. Mr Trevor Beel, for the defendant, argues that it is not suggested that the complainant is a vulnerable witness, and within the provisions of Part IIIA of the Criminal Procedure Ordinance, Cap 221, and therefore she is not entitled to the treatment that she seeks.  He argues that where a person is outside these provisions, the prosecution should establish a proper basis for seeking to depart from the normal procedures under which a witness testifies before a jury.  He contends that once a proper foundation has been laid for the application by supporting medical evidence, it is then for the defence to raise the issue of prejudice, whereupon the Court in deciding the application is to strike an appropriate balance to ensure a fair trial.  He further contends that the offence of rape does not per se give rise to the complainant having a special status as a witness other than the anonymity protection under ss 156 and 157 of the Crimes Ordinance. 

11. I have no hesitation in rejecting these arguments.  They are not only misconceived but also ill‑founded and without support in the modern context.  These arguments fail, in that they presuppose there is a prejudice to the defendant, and misunderstand the concept of a fair trial. As I have pointed out, the cases relied on in opposing this and previous applications, deal with a screen between the witness giving evidence and the defendant.  This is not the case here.  It is a request to put up a screen between the witness giving evidence and members of the public.  In such circumstances, there is no prejudice to the defendant, and as far as I am concerned, none can be shown.  To take this reasoning to its logical extension, it would mean that a defendant in the dock, and even legal terminology, the court procedures and the courtroom setting, would be prejudicial against the defendant.  To speak of prejudice in isolation like this, is really to exaggerate its effect, if any.  Put in the context of the criminal trial process where the defendant is presumed innocent, the prosecution have the burden to prove its case beyond reasonable doubt, the defendant does not have to prove his innocence, and the jury are reminded to arrive at their verdict only on the evidence presented to them during the trial, there is no prejudice against the defendant as claimed.

12. The general protection under s 156 of the Crimes Ordinance offered to a complainant by providing anonymity during the trial process is significant.  Its enactment is in recognition by the legislature that a complainant in a sexual offence needs to be specially treated given the nature of the alleged crime and the matters likely to be raised in the course of a trial.  In addition, the court has the common law power, and the duty to regulate its proceedings, and in particular the manner in which witnesses might give their evidence, when it is necessary to meet the requirements of justice in a particular case.  In Hampson v HM Advocate [2003] SLT 94, it was explained that in normal circumstances a witness gives evidence in public from the witness box, makes known his or her identity, sees and is seen by the accused, is subject to cross examination by or on behalf of the accused, and has no assistance in the expression of his or her evidence.  It was also recognised that there are witnesses who would be placed at an unfair disadvantage by the normal procedure, and on that account are regarded as vulnerable and in need of special measures to protect them and the courts under the common law may authorise exceptions from the normal procedure.  It was held in that case that the enactment of legislation to further cater for certain categories of witnesses by authorising special measures for the taking and giving of evidence did not limit the continuing common law power.  The fact that Part IIIA of the Criminal Procedure Ordinance, Cap 221, authorised the taking of evidence of vulnerable witnesses in special circumstances, does not deprive the court of the power to deal with persons outside these provisions under the common law. 

Fair trial

13. During the course of a criminal trial there will be occasions when a balance will need to be struck between competing or conflicting interests whilst ensuring at all times that the defendant receives a fair trial.  In the context of a permanent stay of criminal proceedings on the ground of an abuse of process, in HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133, Ribeiro PJ, with whom the other members of the Court of Final Appeal agreed, had this to say about the concept of a fair trial:

“ … it is only in very unusual circumstances that a court can properly be satisfied that a fair trial is ‘impossible’. The ‘fairness’ achievable is judged in practical and not absolute terms. As Brennan J pointed out in Jago v District Court of New South Wales (1989) 168 CLR 23 at p 49:

‘If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.’

More importantly, the court’s primary endeavour is to ensure that a fair trial takes place, employing the law’s available resources, and not to abort it on the ground that fairness cannot be attained, save as a last resort.”[3]

14. In AG’s Reference (No. 3 of 1999) [2001] 1 All ER 577, Lord Steyn famously stated that:

“The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of all that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.”[4]

15. It must not be overlooked that victims have rights too.  Under the Victims of Crime Charter (2007) in paragraph 6 it provides that: “Victims who have to give evidence in court shall not be made to feel intimidated by the experience.” See also The Statement on the Treatment of Victims and Witnesses (2009) at paragraph 3.5 and The Prosecution Code (2013) at Chapter 14 which provides, amongst other things:

“ 14.2 Victims of crime and vulnerable witnesses (because of age or psychological or physical condition) have special interest in the proceedings and special needs, which may affect their ability to give effective evidence if left unattended.

14.3  There is a public interest in facilitating the reporting of crime and in its effective prosecution.  This may be promoted by treating such persons with respect and understanding and supporting them through the criminal justice process.”

16. In ensuring a fair trial is received by a defendant, the court is also required to ensure that fairness extends to other interests, including that of a witness.  There will be occasions where the court will be required to strike a balance between, on the one hand, the rights of the defendant, and, on the other, the rights of the witness.

17. It is in the public interest that the courts, within acceptable norms, attend to the requirements of a witness so that their ability to give evidence properly and fully is not affected.

Open justice

18. In Scott v Scott [1913] AC 417, the House of Lords affirmed the general rule of the common law that justice must be administered in public, although a court by reason of its inherent jurisdiction to control its own procedure, may direct exceptions to that rule.  To allow an exception it must be shown that it was necessary in order that the due administration of justice be achieved.  This was succinctly stated by Lord Diplock in Attorney-General v Leveller Magazine [1979] AC 440 at 449H:

“ As a general rule the English system of administering justice does require that it be done in public:Scott v Scott [1913] AC 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justicehas two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.

However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule.  Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonable believes it to be necessary in order to serve the ends of justice.”

19. I do not see the principle of open justice being offended to any measurable degree by a witness, in the circumstances of a case of this type, giving evidence behind a screen so that she cannot be seen from the public gallery.  The public cannot see her and she cannot see the public.  But in every other respect, the proceedings are in open court.  This is a limited restriction on the public nature of the hearing and one that appropriately involves balancing a desire to ensure open justice, on the one hand, and the addressing the reasonable concerns and anxieties of a witness, on the other.[5]

20. In a more recent case, the English Court of Appeal in Sodiq Adeojo, David Nyamupfukudza v R [2013] EWCA Crim 41 rejected the argument that screens erected to prevent members of the public gallery seeing the witness raised the possibility that the jury would feel sympathy for the witness or animosity towards the defendants.  The Court did not accept that the erection of screens in the public gallery were capable of causing undue prejudice to the appellant.  A view with which I wholeheartedly agree. 

Entitlement to a screen

21. The notion that the use of a screen between a witness and members of the public is prejudicial to a defendant is without foundation and should be soundly rejected.  It is now commonplace for courts to employ a range of protective measures for witnesses, including the use of a screen to shield a witness from view when giving evidence, and this would be perfectly understandable in a case where a witness has to give evidence that could be embarrassing and sensitive for her.  In the modern context, juries would not read anything adverse to the defendant into the fact that the witness is giving evidence with the use of a screen.  If the circumstances arise where a witness is to give embarrassing and sensitive evidence in a sexual offence case, and it has been requested that she gives her evidence screened from the public, there is in my view no basis to refuse such a request.  In any event, an appropriate direction to the jury will allay any concerns from the defendant. Victims are part of the criminal process and fairness to them is of equal importance for a fair trial.

22. For the avoidance of any doubt, I do not see any need in a sexual offence case for a complainant to support an application by obtaining and producing medical evidence.  A similar view was taken by the New Zealand Court of Appeal in R v Mussa [2010] NZCA 123 where they rejected the requirement for expert evidence from a social worker or a psychologist to support an application for the complainant in a rape case to give her evidence screened from the defendant.  The Court said “We are loath to require Judges to undertake an extensive process involving expert evidence in every case of this kind.”[6] It is enough for a complainant to express his or her concerns about giving evidence which should be readily accepted by the courts given that allegations of sexual violence or abuse raise embarrassing and sensitive matters for a complainant, and if a complainant wishes to give his or her evidence screened from the public, she or he should be allowed to do so. 

Conclusion

23. Let me summarise the issues and my views in relation to them. 

(1)   The right to confront your accuser is engaged when a witness is screened from the defendant but is not engaged when a witness is screened from the public. Even in such circumstances when it is engaged, it is generally viewed that any prejudicial effect is cured by an appropriate direction to the jury. In a case where a witness is screened from the public there is no undue prejudice to the defendant.

(2)  The principle of open justice is engaged when a witness is screened from the public. There is a limited restriction to the public nature of the proceedings and the courts will have to balance that limited restriction against the rights of a witness, taking into consideration the nature of the evidence to be given by the witness and the effect it will have on him or her in giving such evidence, and that this is necessary in order to achieve the due administration of justice.

(3)  A fair trial involves fairness to the defendant, the witnesses and the public. The rights of victims and witnesses are recognised and are an important consideration in the criminal trial process. It is part of the court’s function to regulate its proceedings and to employ appropriate measures to ensure that a witness’s ability to give effective evidence is not affected and this will serve the public interest to encourage generally witnesses to come forward to testify in criminal trials.

(4)  A complainant in a sexual offence will more than likely be giving evidence that is embarrassing and sensitive. That alone justifies allowing the complainant to give evidence screened from the public in order to achieve the due administration of justice. An appropriate direction to the jury can be given that they do not read anything adverse to the defendant by the use of the screen.

24. It is quite apparent from the foregoing that a defendant’s right to a fair trial is not jeopardized or prejudiced by addressing the reasonable concerns and anxieties of a witness in a case concerning a sexual offence.  It is imperative that witnesses come forward and give evidence, and feel assured that appropriate measures will be put in place to lessen the trauma and the anxiety in giving evidence in such cases.  The criminal justice system is equipped to ensure that there is fairness to all.

25. For the reasons I have given, I grant the application by the prosecution. 

Proposed direction

26. I propose to give a direction to the jury at the time the complainant gives her evidence in the following terms and to repeat them in my summing up to the jury.

“ Please do not read anything adverse to the defendant into the fact that the witness is giving evidence with the use of a screen. The purpose of the screen is to shield the witness from public view to give evidence about matters that are embarrassing to her. Please be reminded, you are to decide the case on the evidence before you.”

27. I invite submissions from counsel as to the proposed terms of the direction and when it should be given.

[1] See the discussion of the common law principle in the judgment of Lord Bingham of Cornhill in R v Davis [2008] HRLR 35.

[2] At pp 40-41.

[3] At p 150 D – G.

[4] At p 584 g – j.

[5] See Re Ministry of Defence’s Application [1994] NILR 279.

[6] At para49.