An ACT Supreme Court judge cleared a path for a girl to give evidence in a sex abuse case against her father with a disability assistance dog by her side.
Subscribe now for unlimited access.
$0/
(min cost $0)
or signup to continue reading
Justice Richard Refshauge found it would be "contrary to the interests of justice" if the girl was overwhelmed and couldn't give evidence to the best of her ability because she was not accompanied by the dog, which gave her vital emotional support.
The girl's father, 44, was charged with two acts of indecency and assault occasioning actual bodily harm allegedly committed against the girl in 2006 and 2009.
His legal team and the prosecution had debated at the start of his trial whether his 15-year-old daughter's disability assistance dog should be allowed in the room where she would give her evidence remotely.
Crown prosecutor Jane Campbell said the girl was on the autism spectrum and had an anxiety disorder, which would make it difficult for her to give evidence without becoming anxious, and the dog's presence would help alleviate any distress.
But the defendant's lawyer argued the dog should not be with her as it would trigger sympathy from the jury and be prejudicial against her father and the animal could distract the girl or a jury.
The lawyer said the 16-month-old dog had not yet completed its training as an assistance dog and had no formal accreditation.
In the ACT, child and vulnerable witnesses in sex offence cases can go into a remote room to give pre-recorded evidence that is later played in court.
Only certain people are allowed to be in the room when that evidence is given and the court must grant permission for anyone else to be present.
In his decision, published on Tuesday so as not to prejudice last year's trial, Justice Richard Refshauge said he would allow the assistance dog to accompany the girl when she gave evidence.
He accepted she struggled to manage her anxiety and was often overwhelmed. That rendered her unable to function, think clearly or process information if she wasn't adequately supported.
"Clearly, if the complainant were to 'shut down' and not function, then the proper evidence necessary for the court proceedings would not be able to be adduced.
"That would be contrary to the interests of justice."
The judge found the dog's presence boosted the girl's ability to cope, provided a sense of familiarity and emotional support, and kept her settled in situations that could be overwhelming.
He said it would not be unfairly prejudicial to the defendant if the girl functioned better with the dog in the room as she gave evidence, and said any concerns the animal's presence would evoke sympathy could be mitigated by directions to jurors.
"I am not satisfied that the presence of [the dog], even if a beautiful-looking dog, will attract sympathy for the complainant and certainly not so much as to divert the jury's attention from its task."
Justice Refshauge said assistance dogs had occasionally been used by witnesses with a disability when they gave court evidence.
"There is little to differentiate a support person and an assistance animal so far as the intention to relieve the known, perhaps inevitable, stress for a child when giving evidence, especially one with a disability relevant to the giving of evidence.
"There is a changing realisation that special arrangements for witnesses, especially child witnesses, are often necessary to ensure that the trial is fair to the child and to the public, without compromising the fairness to the accused."
