Woila (No 2), The State v [1978] PNGLR 113 (20 April 1978)

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CRIMINAL LAW - Practice and procedure - Whether accused may stand trial other than from dock - Whether right or indulgence.

An accused person who is defended by counsel may claim as of right to be allowed to sit in court near his counsel.

To make effective the rights of an accused under s. 37 of the Constitution he must have free and unrestricted communication with his legal representative in court during his trial, and the court has a duty under ss. 22 and 57 of the Constitution to ensure that court architecture (sic. dock) does not render ineffective the exercise of constitutional rights.

If the question is one of indulgence only by the court, requests to sit near counsel should be very freely granted in the interests of dispensing justice to the individual.

This was the trial of an accused on a charge of murder, during the hearing of which the accused was permitted by the court to sit behind his counsel after the plea of not guilty was recorded. On objection being taken (on the tenth day) to persons charged with offences standing their trial from outside the dock, his Honour made the following ruling.

KEARNEY J: The accused is standing his trial for murder. On 6th April he appeared in court from custody and was placed in the dock and arraigned. He pleaded not guilty; this is the tenth day of his trial.

Having recorded his plea, I asked defence counsel whether he wished to have his client sit near him. Mr. Jackson said that he did, and that that was also the accused’s desire. There was no objection by the State prosecutor. I directed the accused to leave the dock and sit behind his counsel; and there he has sat, throughout this trial.

Yesterday the Public Prosecutor took general objection to persons charged with offences, standing their trial from outside the dock. He instanced the invitation I had extended to this accused, no doubt being unaware that the trial was continuing. This morning I invited submissions from counsel on the matter, and ruled that the accused should remain seated near his counsel.

The questions are, whether an accused has a right to stand his trial from a place in court near his counsel, or whether that is a matter of indulgence by the court; and if the latter, the principles which guide its exercise.

To some extent, the practice and procedure in trials on indictment is provided by Pt. 7 of the Criminal Code; much of it, however, stems from the practice and procedure of earlier criminal courts in this country, developed and applied over the last 90 years. In turn, these are derived front the practice of English criminal courts.

Nowhere in the Criminal Code is it provided that an accused person must remain in some particular place in the courtroom, during his trial. The only statutory provision touching in any way on the subject is s. 74 of the Evidence Act 1975[ccxiv]1; but that does not assist. Nor is there any such provision in the statute law of England. In general, there is no such provision in the statute law of common law countries, although there are exceptions e.g. New South Wales[ccxv]2 and Nigeria[ccxvi]3.

It is, therefore, as a matter of long-standing practice, that an accused person stands his trial from the dock when the courtroom is provided with one. There is nothing magical about a dock. It is a small enclosure within a courtroom, part of the criminal court architecture developed in England some centuries ago. It was not always so. The word “dock” may stem from the Flemish “dok”, a kind of cage. In some English courtrooms, that would be an apt description, the accused person emerging into a formidable enclosure by stairs front a cell below. Indeed, so enclosed was the dock into which he was compelled to go that Mr. Penn (R. v. William Penn and Anor.[ccxvii]⁴), complained that he was being put out of court; but that was 300 years ago.

The dock, and other grim realities of the criminal courts, first became widely known through the writings of Charles Dickens in the 19th century. Thus Oliver Twist found himself:

“jostled among a crowd of people, chiefly women, who were huddled together in a dirty, frowsy room, at the upper end of which was a raised platform, railed off from the rest, with a dock for the prisoners on the left hand against the wall, a box for the witnesses in the middle, and a desk for the magistrates on the right; the awful locality last named, being screened off by a partition, which concealed the Bench from the common gaze, and left the vulgar to imagine (if they could) the full majesty of justice.”[ccxviii]⁵

Sadly, it is sometimes not so very different today; court architecture has not changed a great deal. A notable defect is that it does not cater for the need for close contact between an accused person and his counsel. American court architecture is superior, if only in this respect: the accused sits next to his counsel, and usually there is no dock at all. It may be that it is there considered that to hinder free access to counsel, is to deny an accused person his rights to “due process of law” under the Fifth Amendment, or to the “assistance of counsel” under the Sixth Amendment. American concepts of “due process” would appear to be irreevant to this country: Constitutional Reference No. 1 of 1977[ccxix]⁶. In Sweden, the accused sits at a desk facing the prosecutor.

Growing awareness of the importance of this defect has prompted calls in recent years that the dock be done away with; the Council of the Law Society in England so urged more than a dozen years ago. Three major reasons for its abolition have been advanced:

(a) To place an accused person in the dock is not in accord with the principle that he is presumed to be innocent until he is proved guilty. I need not emphasize the importance of this principle, a “golden thread” of the criminal law as Viscount Sankey L.C. called it[ccxx]⁷, which is now woven into the fabric of the Constitution: s. 37(3)(a).

(b) To incarcerate the accused in the dock seriously inconveniences the conduct of his defence, by denying him free and continuous access to his counsel. The Constitution has provisions which touch upon this. An accused person has the right to adequate facilities to prepare his defence (s. 37(4)(c)), to defend himself before a court by his lawyer (s. 37(4)(e)); and to examine by his lawyer the prosecution witnesses (s. 37(4)(f)).

(c) The identification by witnesses of the accused as the person to whom their evidence relates, is a mere formality when he is segregated and isolated in the dock.

There are, I think, only four reasons which can be advanced in favour of retaining the dock as the place for accused persons to stand their trial. They are:

(a) That its use is sanctified by history. It is quite clear that persons charged with felony in England 200 years or so ago had to stand their trial from the dock, though the court might as a matter of indulgence permit them to be on the floor of the court, on grounds of physical disability: R. v. John Horne Took[ccxxi]⁸. The courts insisted that this rule be strictly observed, as they were reluctant to distinguish between prisoners; thus in R. v. Zulueta[ccxxii]⁹ an application by counsel to have the accused sit near him during trial, so that he might “communicate with him personally for the purposes of his defence”, was refused. Despite the lack of any recent authority (the only Australian case I have found is R. v. Wilson[ccxxiii]¹⁰, decided in 1887) these cases accurately state the practice at this time in this country. But there have been many and great improvements in criminal procedure since the courts laid down these rules including, since 1836, the right to counsel; and the concept of human rights has been extensively developed. While arguments based on historical usage are not lightly to be set aside, the question is really whether this practice is an anachronism, or a practice well suited to the modern criminal trial and to the proper enforcement of an accused’s constitutional rights in this country.

(b) That it is necessary for reasons of safe custody and security. True it is that to place accused persons in a securely enclosed place in a courtroom more easily prevents their escaping or misbehaving. Even then, it is no guarantee. Thus we read of a Mr. Berry who leaped from the dock “in an almost miraculous manner over the heads of the barristers” and on to the clerk’s table where “he proceeded to divest himself of his clothing and to utter wild shouts and blasphemies” R. v. Berry[ccxxiv]¹¹. While in 1716 it was reported that “James Goodman ... made his Escape ... by leaping over the Spikes of the Bail-Dock and the Rails of the Sessions-House in the Old-Baily”[ccxxv]¹². No dock in any court in this country today could be called a “securely enclosed space”; none would have presented the athletic Mr. Berry and Mr. Goodman with the slightest problem. But in any event this argument takes no account of the presence these days of police, or the possibility of other means of restraint, if necessary.

(c) That, as with the fixed positions of other participants in the trial process, it assists in the ready identification of the role of the parties involved and thus to the orderly conduct of the trial.

(d) That all accused persons should be treated, as far as may be, in the same way. It will be recalled that the old common law courts relied on this principle, to restrict the exercise of their indulgence. The principle should be upheld; but it does not deal with the question, where accused persons should sit.

I consider that to make effective the rights of an accused under Constitution s. 37, he must have free and unrestricted communication with his legal representative in court, during his trial. The Constitution is self-executing as regards s. 37 rights “to the fullest extent that their respective natures and subject matters permit”: s. 11(2). Further, this Court has a duty in my opinion, stemming from Constitution ss. 22 and 57, to see that court architecture does not render ineffective the exercise of constitutional rights. The rule expressed in the old English authorities should not apply here, because it is inconsistent with the effective exercise of those rights: Constitution Sch. 2.2.(1)(a). The docks in courts in this country are vestigial structures; there is no reason why accused persons should not sit there. But if they are defended by counsel as all accused in this Court are, and wish to sit in court near their counsel, they are, in my opinion entitled to do so. It is not a matter of indulgence by the court; the right which Mr. Horne Took claimed —“to be placed in that situation which is best adopted for me to make my defence ... to be placed by the side of my counsel”— nearly 200 years ago, is now, in my opinion, secured to all.

If I am wrong in this, and the question remains one of indulgence by the court, I consider that requests to sit near counsel should now be very freely granted in the interests of dispensing justice to the individual: see Constitution s. 158(2). In the present case, the advantages to the accused and the administration of justice are manifest. The accused was able to inform his counsel (and thus the court) of certain deficiencies in interpretation as they arose, which were, fortunately, corrected. Further, I have observed the accused and counsel in frequent consultation, during the testimony of witnesses, something which otherwise would not have occurred at all.

I ruled, accordingly, that the accused was entitled to sit near his counsel as a matter of right; and, if that were not so, that he should, as a matter of indulgence by the court, to enable him effectively to exercise his constitutional rights, be permitted to do so throughout the trial.

[ccxiv]s. 74 provides:

“A person charged with an offence and called as a witness. shall, unless otherwise ordered by the court, give his evidence from the witness box.”

[ccxv]Section 400 of the Crimes Act 1900 (N.S.W.) provides:

“In every case, whether of felony or misdemeanour, the presiding Judge shall have power to order the accused to enter the dock or usual place of arraignment, or to allow him to remain on the floor of the court, and in either case to sit down as such Judge shall see fit. Provided that every defendant in a case of libel, or of assault simply not being indecent assault, may remain on the floor of the court as at present.”

[ccxvi]Section 214 of the Criminal Procedure Act 1945, (Nigeria) provides:

“Where an accused person appears before a court on a summons he may be required to enter the dock or to stand or sit adjacent thereto as may be ordered by the court.”

[ccxvii](1670) 6 State Trials 947 at p. 961.

[ccxviii]Charles Dickens: ‘Oliver Twist’, Chapter 43 (1838).

[ccxix][1977] P.N.G.L.R. 362.

[ccxx]Woolmington v. D.P.P. [1935] A.C. 462 at p. 481.

[ccxxi](1794) 25 State Trials 1, at pp. 6-14. Took had stood at the “bar”, which may have preceded the dock, or eventually been part of it.

[ccxxii][1843] EngR 1001; (1743) 1 Car. & K. 215; 174 E.R. 781 at 782.

[ccxxiii](1896-98) 7 Q.L.J (N.C.) 110.

[ccxxiv](1897) 104 L.T. Journ. 11, cited in Hampton: Criminal Procedure and Evidence, at 145.

[ccxxv]Oxford English Dictionary, 1933 ed. Vol. 1 under Bail-dock.

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Papua New Guinea Law Reports

Woila (No 2), The State v [1978] PNGLR 113 (20 April 1978)

Papua New Guinea Law Reports - 1978