c4b3a677-e69c-4b26-a243-9448d77da3f4.pdf

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL.PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA451/2017[2017] NZCA 378BETWEEN GEORGE DAVID HENRY SMITHAppellantAND THE QUEENRespondentHearing: 28 and 30 August 2017Court: Harrison, Duffy and Williams JJCounsel: T J Jackson for AppellantM A Corlett and C R T Hollings for RespondentJudgment: 30 August 2017JUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is allowed.C All the evidence of the complainant both in chief and undercross-examination is to be given orally at trial either by way of CCTV orfrom behind screens.D Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of trial.Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)[1] On 26 July 2017 Dunningham J granted the Crown's application for directionsthat (1) the evidential video interview of the complainant be played effectively as herevidence-in-chief at trial of the charges faced by the appellant, George Smith, and (2)that while she was giving that evidence or being cross-examined she appeared by wayof CCTV from an alternative location. Mr Smith appeals.1[2] The brief background is that the appellant Mr Smith is due to face trial in theHigh Court at Timaru commencing on 4 September on charges of kidnapping,contravening a protection order, unlawful possession of a firearm and possession ofmethamphetamine and a utensil. The judgment records that Mr Smith opposed theCrown's application on three grounds. The third was that the complainant's evidentialvideo interview was long, non-compliant with various rules of evidence, in need ofediting and therefore not in a form suitable for production as evidence-in-chief at trial.It appears that the Judge was satisfied that these problems could be overcome by wayof editing. Mr Smith's counsel, Mr Jackson, did not pursue that ground of challengeon appeal.[3] However, when the appeal was first called before us on 28 August wecommunicated to counsel for both parties our view that an interview of some six hours'duration was not a satisfactory foundation for the complainant's evidence-in-chief.The interview is distinctively discursive and contains a great deal of irrelevant andgenerally inadmissible material. We were not satisfied that the interview could besalvaged by editing in such a way as to make it an admissible form of evidence-in-chief at trial.[4] We invited counsel to confer and reconvened the hearing of the appeal for thismorning. Counsel have agreed that the evidential video interview will not now beplayed at trial. However, Mr Jackson accepts that the complainant's evidence should1 R v Smith [2017] NZHC 1751.be given either by way of CCTV or from behind screens. He acknowledges theopinion of a clinical psychologist, Katrina Stanley, in a brief letter tendered on 23 July2017 that the complainant would suffer excessive stress if she was required to give herevidence in the courtroom.[5] In these circumstances the application for leave is granted and the appeal isallowed. The evidence-in-chief of the complainant will be led in the usual way andnot in the form of the evidential video interview. However, the complainant'sevidence-in-chief and under cross-examination will be given either by CCTV or frombehind screens in the courtroom — whichever means is acceptable to the trial Judge.[6] The publication of this judgment and any part of the proceedings (includingthe result) in news media or on the internet or other publicly available database isprohibited until final disposition of trial. Publication in law report or law digest ispermitted.Solicitors:Quentin Hix Legal Ltd, Timaru for Appellant