AG for the Sovereign Base Areas of Akrotiri and Dhekelia v Steinhoff(Akrotiri and Dhekelia) [2005] UKPC 30

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 1 of 2005Venue FROM THE APPEAL COURT OF THE SOVEREIGN BASE AREAS OF AKROTIRI AND DHEKELIA
Between
AG for the Sovereign Base Areas of Akrotiri and DhekeliaAppellantSteinhoff(Akrotiri and Dhekelia)Respondent
Before
Lord Rodger of Earlsferry Baroness Hale of RichmondLord Brown of Eaton-under-HeywoodSir Andrew LeggattSir Swinton ThomasDate 19 July 2005
[1]:- Lord Rodger of Earlsferry Baroness Hale of Richmond Lord Brown of Eaton-under-Heywood Sir Andrew Leggatt Sir Swinton Thomas [Majority Judgment delivered by Baroness Hale of Richmond ] On 18 February 2004, the respondent was convicted by the Senior Judge's Court of the Sovereign Base Areas of Akrotiri and Dhekelia of attempted rape, rape and threatening violence. He was sentenced to six years' imprisonment. The trial court consisted of Wood, Duckworth and Whitburn, Deputy SJJ, all of them very experienced in conducting criminal trials in England and Wales or the Colonies. On 21 July 2004, a differently constituted Senior Judge's Court allowed the respondent's appeal, quashed his convictions, and declined to order a retrial. The appeal court consisted of Daniel and Teare SJJ and Farmer Deputy SJ, again all of them very experienced in conducting criminal trials in England and Wales. The Attorney General appeals against that decision and invites the Board either to restore the convictions and sentence or to remit the case to a differently constituted Senior Judge's Court for further consideration in the light of the judgment of the Board: see R v Gilbert [2002] UKPC 17 , [2002] 2 AC 531 . The issue[2]There was a number of grounds of appeal but the Appeal Court formed the view at a comparatively early stage that the appeal should be allowed on one. Accordingly they did not rule on the others, although they had heard detailed argument from the defence addressed to these. The successful ground related to the way in which the main prosecution witness had given her evidence. The complainant, Sepa Nilanie Violet, was a 41-year-old Sri-Lankan married woman working in Cyprus as a housemaid. The trial court granted an application that she be screened from the accused when giving her evidence. However, the arrangement of the courtroom and screen were such that the witness could not be seen by both counsel at once. Accordingly, it was decided that counsel should change places, so that each could see the witness while questioning her. Both could, of course, hear her throughout, as could everyone else.[3]The Criminal Procedure Ordinance for the Sovereign Base Areas provides, in section 3, that as regards matters of criminal procedure for which there is no special provision either in the Ordinance or any other enactment, the court shall apply the law and rules of practice relating to criminal procedure for the time being in force in England and Wales. For some time, the criminal courts of England and Wales have allowed child witnesses to give their evidence out of sight but not out of hearing of the accused, under the courts' inherent powers to regulate their own proceedings: see R v Smellie (1919) 14 Cr App R 36; RvX (1989) 91 Cr App R 36. The practice has now been formalised in the Youth Justice and Criminal Evidence Act 1999 but the inherent powers remain: see s 19(6). Section 23(1) of the 1999 Act allows the court to direct that a witness be prevented by means of a screen or other arrangement from seeing the accused. Section 23(2) provides that the screen or other arrangement "must not prevent the witness from being able to see, and to be seen by –(a) the judge or justices (or both) and the jury (if there is one);(b) legal representatives acting in the proceedings; and(c) any interpreter or other person appointed ... to assist the witness". Section 23(3) provides that if a party has more than one legal representative, it is enough for the purposes of section 23(2)(b) "if the witness is able at all material times to see and be seen by at least one of them".[4]There is no doubt, therefore, that the steps taken by the trial court in this case did not comply with the requirements of section 23, which are in mandatory terms. The question, however, is whether this defect was such that convictions inevitably had to be set aside, as the appeal court considered; or whether it is necessary to examine the effect, if any, of the particular arrangements made in this case upon the fairness of these proceedings and thus upon whether a substantial miscarriage of justice had in fact occurred as a result.[5]The powers of the Senior Judge's Court in determining appeals against conviction are laid down in section 145(1) of the Criminal Procedure Ordinance. The court may "(a) dismiss the appeal; (b) allow the appeal and quash the conviction if it thinks that the conviction should be set aside on the ground that it was, having regard to the evidence adduced, unreasonable or that the judgment of the trial court should be set aside on the ground of a wrong decision on any question of law or on the ground that there was a substantial miscarriage of justice: Provided that the Senior Judge's Court, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred; (c) ... (d) order a new trial before the Court which passed the sentence or before any other Court having jurisdiction in the matter." Thus in the Sovereign Base Areas the test both for allowing an appeal and for the application of the proviso is whether there has been a substantial miscarriage of justice. The case[6]There is no need for the Board to rehearse the evidence in the case in detail, but in outline it was this. The complainant came to Cyprus to work as a housemaid in April 2003. Since September 2003 she had been working for Mrs Sharon Tamburrini, who had one child. The respondent, an American technician who had lived in the Sovereign Base Area since 1999, was hoping to have a relationship with Mrs Tamburrini. They went out together on Wednesday 10 December while the complainant baby-sat for Mrs Tamburrini's child and the respondent's two children who were staying with him for Christmas. On Thursday 11 December they went out again to a party together, while the complainant again looked after all three children at the respondent's bungalow. The complainant was given a camp bed in the family room off the kitchen area and was asleep when they came back in the early hours of the following morning. She alleged that the respondent came into the kitchen area naked, put a gun to her throat, violently removed her clothing, kissed and sucked her on the face and breasts, attempted unsuccessfully to rape her vaginally, turned her over and raped her anally. She described a tattoo on his arms and a hairy chest. After he had left she wiped herself with her clothing and with lavatory paper and then washed and put her clothes back on. She tried to wake her employer who was asleep on the sofa. She also tried to leave but the door was locked. So she stayed until the following afternoon when the respondent drove her back home. He offered her money and she refused, saying that she was going to tell the police. The respondent then threatened to kill her if she told her employer or the police. After she got home she washed all her clothes. Later that evening she phoned the Sri-Lankan consulate and told a Mrs Henricus that she had a problem with an American but her mobile phone battery went flat before she could say more. Her day off was the Sunday and she set off to walk from Akrotiri to the Roman Catholic Church in Limassol but was given a lift. There she told a nun, Sister Helen Coorey, what had happened. Sister Coorey took her to the police and the investigations began.[7]Mrs Henricus confirmed her evidence of the phone call to the Consulate on the Friday evening. They had tried many times without success to contact her the following day. Sister Helen Coorey gave evidence of the complaint to her, and of seeing a reddish mark on the complainant's right breast. The investigating officer, DS Georghiou, gave evidence of seeing bruises on her breasts and thighs when the pathologist examined her on the Sunday afternoon. He also took the photographs which were produced in evidence. The state pathologist, Dr Sofocleous, gave evidence of bruises to both breasts which in his opinion were inflicted by the mouth. He also found several bruises on the left thigh, caused in his opinion by gripping from behind. He later examined the respondent and reported that he had tattoos on both arms. Dr Antonia Pastides, an obstetrician and gynaecologist, examined the complainant on the Monday evening and gave evidence of marks on both breasts, not fresh. Dr Paul Pastides, a general surgeon, conducted a rectal and anal examination later that evening and found an internal injury consistent with trauma to the mucosa.[8]The supporting evidence was thus consistent with the complainant's account but not conclusive. There was no forensic evidence to support it. The defence called another state pathologist, Dr Eleni Antoniou, whose interpretation of the bruises from the photographs was different from that of Dr Sofocleous. There was also a timing problem, as the complainant had said that a clock in the kitchen was showing around 4.00 am after the attack took place. But the woman who had given the couple a lift home from the party said that they arrived back just before 4.00 am. She did confirm that one could tell that they had both been drinking. The complainant's employer did not give evidence, but the records of a mobile phone which was said to be hers indicated that she had been texting, three times between 3.45 and 3.56 am and again frequently from 4.36 am until 5.50 am. The employer's sister said that she had gone to the shop with the complainant just after the complainant had arrived home on the Friday afternoon and noticed nothing different about her then or during the following day, although she had seen her put some clothes in a bag on the Friday evening.[9]The trial court, having summarised the evidence, continued:
"In conclusion, we take the view that the case must depend principally on our assessment of [the complainant] as a reliable and credible witness as the prosecution contend. We observed that she showed enormous distress and horror when shown her clothing in the witness box. We are satisfied that this was a genuine reaction and not simulated, and supports the prosecution's contention that she had indeed suffered this appalling experience. Despite strenuous cross-examination she generally adhered to her account and we conclude her evidence rang true."
They also concluded that there was no realistic reason for her to have lied. She had a good relationship with her employer and nothing against the respondent. Any hope that making such a complaint would assist her to stay despite the irregularity of her employment would be outweighed by the shame in her community of making public such an experience. They took into account the points made by the defence, but nevertheless found the complainant's evidence compelling. They did not believe that she could have fabricated it and were satisfied that she had not done so. Overall the court found that the case against the respondent was proved to the standard required in a criminal case.[10]The appeal court concluded that there had been a substantial miscarriage of justice. In doing so they relied upon the fact that the respondent's counsel had not been able to observe the complainant's demeanour throughout her evidence, coupled with the fact that the trial court had relied upon a reaction which counsel had not seen. During her evidence in chief, the complainant had been shown photographs of the clothing which, according to her, she had been wearing at the time. She had been shown the clothing itself during re-examination. Hence neither the respondent nor his counsel had been able to "assess the correctitude" of the trial court's finding nor could counsel "have been aware of its effect at the time on the trial judges' assessment of the witness and her evidence so that he could have taken immediate or timeous objection to their assessment of the witness and her evidence". This appeal[11]Mr Guthrie QC, for the Attorney-General, points out that there is no reason to question the accuracy of the trial judges' observation. It is apparent from the transcript of the trial that the complainant became distressed several times in the course of giving her evidence, not only during examination in chief, but also under cross-examination, and during re-examination. Some of this is noted by the shorthand writer but some is not. Other instances can be deduced from what the other participants are recorded as having said. The task of the shorthand writer is to record what is said and by whom. It is not to record the demeanour of the witness. Hence no conclusions can be drawn from the fact that no distress is noted when the clothing was produced. That is a matter for the court itself to observe and assess.[12]Each counsel had the opportunity of observing the complainant's demeanour while they were questioning her. The cross-examination, as might be expected, was long and vigorous. Counsel for the defence could observe her distress under cross-examination and draw attention to anything which he considered showed that it was feigned or exaggerated for effect. Furthermore, this was a small courtroom where everyone was in close proximity and could hear everything that was going on. Had counsel for the defence felt himself to be under any disadvantage in not seeing what he was hearing he had every opportunity to say so. He would also have been able to observe whether it was having any noticeable effect upon the court. He could have objected to the arrangements at any time. He was also able to warn the court of the dangers of being over-impressed with a complainant's distress.[13]Mr Guthrie also argues that, having failed to object at the time, the defence should not now be able to take advantage of the irregularity on appeal. As was said by the English Court of Appeal in R v Neal [1949] 2 KB 590 at 596:
"If some irregularity comes to the knowledge of Counsel before the verdict is returned, he should bring it to the attention of the court at the earliest possible moment so that the presiding judge may consider whether or not to discharge the jury without giving a verdict. Points of the sort ought not to be held in reserve with a view to taking them before this court when it may be, as here, too late to remedy the mistake."
[14]In this case, everyone was well aware of the problem from the outset. When counsel for the prosecution made the application for a screen, counsel for the defence resisted this, but on the ground that there should not be a screen at all. Everyone knew of the statutory requirement that the witness see and be seen by the other important players in the courtroom. When the problem became apparent, it is evident from the transcript that everyone was looking to find a practical solution. Counsel for the defence did object that the arrangements meant that he had no contact with the witness. In response to this, the court suggested that counsel change places at the appropriate moment. Counsel for the defence accepted this with the words "Thank you. Excellent" and made no later objection.[15]Mr Guthrie argues that this is a defect in procedure which can be waived on behalf of the defence. But in any event, the fact that no objection was made at the time shows that defence counsel did not feel himself at a disadvantage and was only able to take the point afterwards because of the passage quoted earlier from the trial court's reasons. Hence Mr Guthrie argues that there could be no substantial miscarriage of justice, having regard to what happened at the time, together with the strength of the prosecution case and supporting evidence. Discussion[16]The issue is whether what happened at the trial amounted, in itself, to a substantial miscarriage of justice. It was without doubt an irregularity. But in the Board's view, it did not, on the particular facts of this case, amount to any miscarriage of justice, let alone a substantial miscarriage of justice. Face to face confrontation is not an essential requirement of a fair trial in the law of England and Wales or the Sovereign Base Areas. If it were, it would have ruled out the use of screens under the court's inherent powers. Parliament has also recognised that it is not: see R(G) v Camberwell Youth Court [2005] 1 WLR 393 . The object of the special measures provided for in the 1999 Act is not only to enable young and vulnerable witnesses to give evidence when they otherwise might be unable or unwilling to do so; it is also to maximise the quality of their evidence: see s 19(2).[17]There are many ways of ensuring that a trial is fair. The requirements laid down by article 6 of the European Convention on Human Rights have, as Lord Rodger of Earlsferry explained in the Camberwell Youth Court case, to be seen in the context of the wide variety of procedures adopted in the criminal courts of the member states. Some of these allow for the reception of evidence from anonymous witnesses in the absence of both the accused and his legal representatives. The European Court of Human Rights has laid down the principles on many occasions, conveniently in Kostovski v The Netherlands (1989) 12 EHRR 434 , at 447-448:
"In principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that in order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs (3)(d) and (1) of article 6, provided the rights of the defence have been respected. As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings."
Hence, there was a violation when the national court had treated the statements of anonymous witnesses, who had been examined in the absence of the accused and his representatives, as sufficient proof. In Van Mechelen v The Netherlands (1997) 25 EHRR 647 , there was a violation when an investigating judge had arranged hearings where the anonymous witnesses were in one room and the judge, parties and lawyers were in another room, with only an audio link. The defence were therefore not only unaware of the identity of the prosecution witnesses, but also unable to observe their demeanour under direct questioning at any time.[18]In this case, the identity of the complainant was well known to the defence. They thus had every opportunity to challenge her character and credibility. They were in the same room throughout her evidence. Counsel was able to put direct questions to her. While he was doing so, he was well able to observe her demeanour and to take advantage of any weaknesses he could see. It is clear from the transcript that she became distressed on more than one occasion under cross-examination. One such occasion was when they were discussing whether she had wiped herself with her panties or her trousers: she must have shown some signs of distress because one of the judges asked the interpreter to ask whether she was feeling alright. Counsel was well able to make such comments about this and other incidents as he felt appropriate. His cross-examination lasted a good deal longer than did examination in chief and re-examination: it takes up 60 pages of the transcript compared with 37 for examination in chief and four for re-examination. He took her the whole way through her story in considerable detail. He was not in any way impeded in carrying out his essential task of testing her evidence.[19]Furthermore, whether or not it is possible for counsel to waive a procedural defect such as this, the fact that at no time during the rest of her evidence did he protest or complain about the arrangements is a powerful indication that he was not, in fact, at any disadvantage in conducting his client's defence. In particular, if he had felt the need to observe the evident distress which is recorded in the transcript he could have got up and asked to do so. Demeanour during examination in chief and re-examination is much less important than during cross-examination. Hence it is scarcely surprising that counsel acquiesced in the arrangements at the time. It is not suggested that there was anything that counsel did not have a chance to observe apart from her demeanour during her examination in chief. But that would certainly not have enabled him to have taken what the Appeal Court described as "immediate or timeous objection" to the trial judges' assessment of the witness or her evidence.[20]It must also be borne in mind that these were experienced professional judges. There is no reason to doubt that they saw what they say that they saw. Far from it. There is ample indication in the transcript that mention or photographs of the complainant's clothing were distressing for her. The defence is only able to complain about the matter because the judges refer to a particular incident in their reasons. Had they been a jury, the defence would not have been able to complain. A jury is able to make up its mind whether or not it believes the complainant without giving any reasons for its decision at all. But the reasons of the trial court in this case would have made perfect sense without the reference to a particular instance of distress.[21]There is no reason to think that this irregularity led to a substantial miscarriage of justice or in any way prejudiced the conduct of the defence or compromised the requirements of a fair trial. The Attorney General's appeal should be allowed and the decision of the appeal court set aside. Disposal[22]The procedural complaint was ground (4) of six original grounds of appeal. Ground (5) was abandoned. This leaves four:(1) The trial court reached its verdict without assessing the totality of the evidence and/or without making findings as to material facts and/or as to the credibility of the witnesses, especially the witnesses for the defence.(2) The trial Court accepted the evidence of the complainant as reliable and convicted the Appellant thereon without any reference to the multiple and/or material inconsistencies in her evidence and/or to the multiple and/or material inconsistencies between her evidence and the evidence of the other prosecution witnesses and/or accepted parts of the complainant's evidence without giving any reasoning as to why it ignored selectively the remainder of her evidence, especially the material inconsistencies and/or the parts which were against common sense and/or contrary to undisputed facts and/or constituted perjury.(3) The trial Court failed to make findings as to material facts and/or issues and drew inferences from primary facts which were inconsistent with the complainant's evidence and/or disputed facts. (6) The conduct of the proceedings in general left the Appellant with a strong feeling that his trial was not fair and/or that the trial court was not impartial and/or that justice was not duly administered and/or that his submissions were not given due weight and/or were not properly examined.[23]The Board is sceptical about whether there is anything in these additional grounds. Ground (6) is simply a general feeling of unfairness, not uncommon among unsuccessful defendants or litigants, and the remainder amount to generalised complaints about the reasons given by the trial court. Were this a civil case, it would be difficult indeed to argue that the trial court was not entitled to reach the conclusions that it did on the evidence it had heard. Had this been a jury trial, it would have been impossible to argue that the jury was not entitled to reach these verdicts. It was for the trial court to decide whom to believe and to assess the importance of any inconsistencies in the evidence given. Some confusion is inevitable – indeed it is apparent from the transcript - when evidence is being given through an interpreter and earlier accounts were given to different people through different interpreters. Many complainants, perhaps particularly in sex cases, behave in ways which people whose backgrounds and circumstances are very different and who have never been placed in a vulnerable situation find hard to understand. It is not open to the appeal court to retry the case from the transcript. They were not there to see and hear the witnesses. It is not suggested that the trial court misdirected itself in law on any point. When considering the reasons given by the trial court, the observations of Lord Hoffmann in Piglowska v Piglowski [1999] 3 All ER 632 , at 643; [1999] 1 WLR 1360 at 1372, are pertinent:
"First, the appellate judge must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It also applies to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc (1996) 38 BMLR 149 at 165; [1997] RPC 1 , 45: 'The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.' The second point follows from the first. The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgments ... but also of a reserved judgment based upon notes ..."
These comments were made in a civil case where of course the standard of proof and rules of evidence are different from those in a criminal case. But they are nonetheless pertinent because the appellate court does not normally have the luxury of considering the reasons given by the trial court for its factual findings. The appellate court should be slow to intervene with the trial court's findings if it would not have been able to do so in either a civil trial or a criminal trial by jury.[24]Nevertheless, because the appeal court in this case chose not to rule upon those additional grounds, the respondent has never had the opportunity of an appellate decision upon them. It would not be right to deprive him of that opportunity. Hence, the case should be remitted to a differently constituted Senior Judge's Court for consideration of the remaining grounds of appeal. Retrial[25]Had the Board reached a different conclusion on the primary appeal, they would nevertheless have considered this a classic case in which to order a retrial. The appeal court declined to do so. They found themselves unable "to evaluate the correctitude of the Judges' assessment of the witness and the truthfulness of her evidence". That, of course, is true but, for the reasons already given, it was not their task to do so. They went on to comment that when the complainant gave evidence a second time, "more conflict and the like could well emerge in evidence". Taking into account the appellant's position, "We take the view that there is an inevitability about the outcome of a re-trial given consideration of the burden and standard of proof, regardless of whether the complaints are true or not". With respect, here again was the appeal court reaching a view on the strength of the case despite the conclusions reached by the trial court.[26]As Lord Diplock indicated, when giving guidance on the considerations relevant to ordering a new trial, in Reid v The Queen [1980] AC 343 at p 349:
"... the interest of justice that is served by the power to order a new trial is the interest of the public ... that those persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury."
Furthermore, at p 350:
"... it is not necessarily a condition precedent to the ordering of a new trial that the Court of Appeal should be satisfied of the probability that it will result in a conviction. There may be cases where, even though the Court of Appeal considers that upon a fresh trial an acquittal is on balance more likely than a conviction, 'It is in the interest of the public, the complainant, and the [defendant] himself that the question of guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery.' This was said by the Full Court of Hong Kong when ordering a new trial in Ng Yuk-kin v The Crown (1955) 39 HKLR 49, 60. That was a case of rape, but in their Lordships' view it states a consideration that may be of wider application. ..."
[27]Had the Board reached a different conclusion in the primary appeals both considerations would have supported a retrial in this case. The Attorney General is rightly concerned to assert the public interest, not only in the prosecution of serious crime in the Sovereign Base Areas, but also in the protection of some very vulnerable members of society. There can be little doubt that house-servants, not speaking either of the local languages and living a long way from home, are a vulnerable group in that society. It is not in their interests, or in that of the accused, that serious charges such as this should fail, not on their merits, but on a procedural defect which can be remedied in a retrial. This would apply whether the defect were one in the trial process or in the reasons given by the trial court, but not, of course, were the prosecution case so weak that it should never have been brought. Conclusion[28]For the reasons given earlier, however, the Board take the view that this procedural defect was not such as to vitiate the trial or to lead to any miscarriage of justice. The Attorney General's appeal should be allowed and the case remitted to a differently constituted Senior Judge's Court for consideration of the remaining grounds of appeal. Dissenting judgment by Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood[29]We have the misfortune to disagree with the majority on the primary issue in the appeal. In our view there was a miscarriage of justice since, in the circumstances, the respondent did not have a fair trial.[30]As Baroness Hale has explained, during the respondent's trial arrangements were made for the use of a screen so that the complainant should not be able to see the respondent while she was giving her evidence on behalf of the Crown. It was recognised at the time that one of the requirements of such an arrangement was that the screen must not prevent the legal representatives from being able to see the witness. Despite this, presumably because of practical difficulties in fitting up the screen, not only could the respondent not see the complainant while she was giving her evidence, but the respective counsel were able to see her only while they were actually questioning her. In particular, the respondent's counsel could not see her during her examination-in-chief and during re-examination.[31]During re-examination, the complainant was shown the clothing which she had been wearing on the night in question. In giving the reasons for convicting the respondent, the trial court judges said:
"In conclusion, we take the view that the case must depend principally on our assessment of [the complainant] as a reliable and credible witness as the prosecution contend. We observed that she showed enormous distress and horror when shown her clothing in the witness box. We are satisfied that this was a genuine reaction and not simulated, and supports the prosecution's contention that she had indeed suffered this appalling experience. Despite strenuous cross-examination she generally adhered to her account and we conclude her evidence rang true."
It is plain from this passage that the court's observation of what the judges regarded as the "enormous distress and horror" of the complainant when shown her clothing played a material part in their conclusion that she was a reliable and credible witness. But neither the respondent nor his counsel was in a position to see that reaction which was to play such a material role in the court's assessment of the complainant as reliable and credible and, hence, in their decision to convict him. The long and the short of it is, therefore, that the respondent was entirely unaware of what was judged to be a highly significant piece of evidence against him until it came to be mentioned in the court's reasons for convicting him.[32]It is trite that the demeanour of a witness while giving her evidence is always one of the matters which may affect the decision-maker in a trial based on oral testimony. Nevertheless, it is settled that the mere fact that the accused cannot see a particular witness during her evidence does not render the trial unfair. What is essential, however, is that the defendant's representative – his eyes and ears as well as his mouthpiece – should be able to see and hear the witnesses throughout the whole of the trial, since something of significance may occur at any time. As the present case amply demonstrates, from the point of view of the defence, the demeanour of a prosecution witness during re-examination (not to mention examination-in-chief) may be just as important as her demeanour during cross-examination. Mutatis mutandis, the same goes for Crown counsel who should be able to observe the witnesses at every stage of their evidence. If the demeanour of a prosecution witness alters significantly under cross-examination, the public interest requires that prosecuting counsel should be able to form his own judgment on that reaction and to take it into account when conducting any re-examination and when addressing the jury or court. It is precisely because of the importance of both counsel being able to observe all the witnesses while they are giving all their evidence that Parliament enacted section 23(2)(b) of the Criminal Evidence Act 1999.[33]Because the trial court returned a written reasoned verdict, we know that one of the material factors in the court's decision to convict was the complainant's demeanour at a time when she could not be seen by the respondent or his counsel. His counsel was not in a position to comment on that matter. What, if anything, counsel would have said to the judges about it and what effect it would have had on them, we cannot, of course, say. But one of the essential features of a fair trial is that defence counsel should be in a position to decide what to say or do in the interests of his client in response to any material development during the trial. Here he was not. Counsel may have been partly to blame for his predicament, and he failed to raise the problem with the court at the time. Even so, these factors cannot justify ignoring what happened if it rendered the trial unfair. In this case, since counsel was not in a position to comment on the complainant's reaction which played a material part in the judges' decision, we are satisfied that the respondent's trial was indeed not fair and that there was a miscarriage of justice.[34]For these reasons we would have dismissed the Attorney General's appeal on the primary point but, for the reason given by the majority, we would have allowed his appeal to the extent of ordering a retrial.

Cited in 1 later judgment