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Judge Leo Hart ordered the girl, 16, and her brother, 14, to appear in open court with their father in the dock to explain why they wanted to give evidence televised from outside the courtroom. The girl became distressed and said she was going to be sick under Judge Hart's pre-trial questioning earlier this month in the County Court. Covering her face with her hands so as not to see her father, the girl told Judge Hart she could not breathe because she felt uncomfortable and nervous. The judge earlier told her brother, when he said he felt uncomfortable, that "I can understand uncomfortable, but that's not good enough". A barrister for the Department of Human Services told Judge Hart before he questioned the girl that she was an "extremely vulnerable young woman" whose mother had committed suicide in 2003. "(She) has a very troubled background and many fraught experiences over the past five years which have led to serial and sustained departmental intervention in relation to her welfare," Dr Ian Freckleton said. The children's request to testify using the remote witness facility was applied for by prosecutor Ian Heath. The request was supported by the defence. Mr Heath said the witnesses felt they could not do "justice" to their evidence in open court while being able to see their father. Judge Hart responded that "ideally a jury should have a witness right here in front (of) them, where they can see the person in real life, reasonably close up and can not only listen but can watch and see and observe, and so on. "I think in that way a jury is best able to assess the credibility or reliability, or whatever you like, of a witness," he said. He described the use of the remote witness facility as a "second-best practice". Judge Hart asked the girl if she wanted to give evidence from another room, and she replied: "Yes, please." Asked why, she said: "Because I can't do it here." "Why not?" Judge Hart asked, to which she replied: "Because I think I'm going to pass out. I can't do it with all these people in the room. I want to do it by myself." After she left the courtroom, Judge Hart said that to let the girl give evidence as she wished, "I've got to be satisfied that was all genuine". He said: "I'm not saying it wasn't, but I, of course, can't see her now outside there (the courtroom). "I don't know what she's like normally, I don't know whether this is for the occasion or not. The jury won't have the opportunity to assess all of this if it's done by remote." He reluctantly granted the children's request because he worried that a "repeat performance" - a word he used "without connotation" - by the girl was likely to abort the trial. She then gave about an hour's evidence, denying a defence suggestion she had made up the allegations, before the court was adjourned. When the trial resumed the next day, Mr Heath said the girl had grabbed the steering wheel of a car being driven to court that morning by a social worker. Judge Hart was concerned there was a "grave risk" the girl would "break down again" and, in her state, to continue with her evidence would add or repeat the stress that caused the car incident. He later discharged the jury without verdict. The next morning, after reading a report from the girl's treating psychiatrist, Judge Hart said the "thought of giving evidence, indeed, perhaps the thought of going to court, is a stressor, as the doctor refers to, in her life". He ordered the trial not be relisted until there was appropriate psychiatric evidence she was able to give evidence and that "by requiring her to give evidence and come to court to give evidence, et cetera, there's no, or minimal, risk anyway that her condition will be exacerbated in such a way to have perhaps even permanent effects". Judge Hart said the car incident may have involved a "suicidal attempt" and "demonstrated, I think, a clear desire on her part not to continue giving evidence". The trial of the man, who pleaded not guilty to five charges, including two of incest, was adjourned. The Age tried unsuccessfully to contact Judge Hart. The case comes after the announcement of new Victorian laws to protect sexual abuse victims in court. Judge Hart's cross-examination Exchanges between Judge Leo Hart and a prosecution witness GIRL: Because I don't want to look over there. JUDGE: Over where? GIRL: Over there. JUDGE: Why? GIRL: Because I don't want to see. JUDGE: Why not? GIRL: Because I think I'm going to be sick. JUDGE: Because what? GIRL: Because I think I'm going to be sick. JUDGE: You're going to be sick. Why? If you see your father? GIRL: Please. JUDGE: Is that what you're saying? (At this point the girl became distressed.) JUDGE: Do you want to give evidence from another room? GIRL: Yes, please. JUDGE: Why is that? GIRL: Because I can't do it in here. JUDGE: Why not? GIRL: Because I think I'm going to pass out. I can't do it with all the people in the room. I want to do it by myself. JUDGE: Are you frightened by all these people that are here now? (The girl makes an indistinct reply.) JUDGE: Sorry? You think you might pass out? GIRL: I can't breathe, just, please sir. JUDGE: You can't what? GIRL: I can't breathe. JUDGE: You can't breathe. Do you want to tell me why you don't want to give evidence here from where you are? GIRL: Because it makes me very, very uncomfortable and nervous saying it in front of lots of people and I just . . . JUDGE: Inevitably it's got to be said in front of some. GIRL: I know, but I won't know it will be in front of all the people. They won't be staring at me and I won't see them. Steve Butcher |
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