The Supreme Court has held that an accused person in a sexual abuse trial does not have a "right" to physically confront his or her accuser. The court ruled that the procedure by which a child could give evidence through a live television link was not unfair.
The Chief Justice, Mr Justice Hamilton, giving the judgment, said it was undeniable that children might be manipulated by malevolent adults, or in some cases by over-zealous workers, into making false accusations of sexual abuse. The court accepted that fair procedures required that a proper means existed to assess the credibility of all the testimony in a prosecution case, including the testimony of child witnesses.
However, the court was satisfied that the assessment of such credibility did not require that the witness should give evidence in the physical presence of the accused person.
The requirements of fair procedures were adequately fulfilled by requiring the witness to give evidence on oath and be subject to cross-examination. The judge and jury would have ample opportunity to observe the demeanour of the witness on the television monitors and to assess the reliability of such testimony. In this way a person's right to a fair trial would be adequately protected and vindicated.
The accused person's rights were also protected, because a judge might not permit evidence by way of a television link if the accused person established that there was "good reason to the contrary".
Fair procedures did not require a case-by-case determination as to whether a person under 17 would be traumatised by giving evidence in court in the presence of the accused. The appeal arose out of a case in which a man was sentenced to five years' imprisonment for a sexual offence. A 14-year-old girl gave her evidence against the accused man via a live video link. The man's lawyers submitted that such a procedure interfered with his constitutional rights to a fair trial. The trial judge overruled the objections.