Challenge to screen use

Press, 16 November 1988, Page 12

Challenge to screen use

PA Wellington The use of screens in court to shield sexually abused children from their alleged attackers was challenged in the Court of Appeal yesterday. Lawyers acting for a Whangarei man jailed for sodomising his daughter, aged 12, sought to have the conviction quashed and a new trial held because of the use of screens. It was the first time screening had been used in New Zealand. The five judges, president Sir Robin Cooke, Mr Justice McMullin, Mr Justice Somers, Mr Justice Bisson and Mr Justice Barker, reserved their decision. The man, whose name was suppressed, sat behind a two-way mirror while his daughter gave evidence during a High Court trial in June. A jury found him guilty of one count of sexual violation but not guilty of two others. He was jailed for six years by Mr Justice Hillyer. Mr Gordon Whiting and Mr Gerard Winter, the

man’s lawyers, told the court the use of the screens breached the fundamental principle that people accused of crimes should be able to confront their accusers face-to-face in court. It also contravened a section of the Crimes Act, that said people on trial must be present throughout the hearing, Mr Whiting said. By being hidden, the accused was not “present” according to dictionary definitions of the word, he said. Mr Winter said the screens prejudiced the man’s chances of a fair hearing because their presence would have planted seeds of doubt about his innocence in the minds of the jury. The jury would presume he must have done something if his daughter could not bear to look at him. He also argued that Justice Hillyer applied incorrect legal reasoning when approving the use of the screens and said not enought evidence was submitted to show the daughter would have suffered trauma if she had to

confront her father eye-to-eye. Counsel for the Crown, Mr Philip Smith, said the use of the screens did not contravene the Crimes Act and a strong direction from the judge to the jury ruled out chances of a fair hearing being prejudiced. He said evidence given to Justice Hillyer showed a strong possibility the daughter would “clam up” if she saw her father. “The interests of justice require that truth be ascertained,” Mr Smith said. “Under our system of justice, truth is determined by facts which are established by evidence. If a person is inhibited from giving evidence, then the facts will not be available and the truth cannot be ascertained.” Mr Smith disputed Mr Whiting’s assertion that it was important a jury could view the interaction between a witness and the accused. “Evidence comes from witnesses. The demeanour of a witness is relevant but the demeanour of the accused is of no relevance at all,” he said.