Judge reverses ruling on secret incest trial

PUBLISHED : Thursday, 27 October, 1994, 12:00am
UPDATED : Thursday, 27 October, 1994, 12:00am

THE judge who decided to hear an incest case behind closed doors overturned his controversial ruling yesterday, but created a fresh dilemma over whether the blind girl involved must give her evidence again.

Judge Michael McMahon ruled on Tuesday that the trial should be heard in camera to protect the 18-year-old girl.

Yesterday he allowed the press and public back into court, saying that the remaining witnesses did not come into any special category.

But the case then took a further twist when Director of Public Prosecutions Peter Nguyen suddenly appeared and summoned prosecutor Pamela Cheng to an urgent consultation in an adjacent room.

Ms Cheng returned to admit that it had been wrong to take not-guilty pleas from the girl's 44-year-old father behind closed doors.

There is now doubt that the evidence heard so far is valid.

Judge McMahon adjourned the trial until today so Ms Cheng could clarify the situation.

If it were decided that the evidence is invalid, the trial would have to start again and the girl whom the judge had said he sought to protect would have to return to the witness stand.

Judge McMahon came under attack from legal and constitutional experts for closing the trial.

Chief Justice Sir Ti Liang Yang said he had been keeping himself fully informed of developments in the case. He would not comment further because the case is sub judice.

A day of high drama at the District Court began when a sign saying 'In camera - no admittance' was removed from the doors of Court 39.

Judge McMahon said: 'The first prosecution witness is blind. She has been blind since birth.

'She was expected to, and did, give evidence of non-consensual sexual intercourse with her father, the defendant, in respect of two instances, the first when she was 13.

'She appeared to be distressed and disoriented. I can understand why Ms Cheng made the application for the proceedings to be held in camera.

'On balance I thought it best to proceed with the evidence in closed court,' he said.

He said he had informed lawyers in the case that he might review the situation at a later stage.

Now the first witness had finished her evidence both prosecution and defence lawyers agreed that the court should be opened.

But within minutes of further evidence being heard in public a message was sent to the judge that Mr Nguyen wished to speak with counsel in the case.

The trial was adjourned so that all parties in the case could discuss the matter with Mr Nguyen.

Ms Cheng told Judge McMahon that 'we consider it was wrong to have the arraignment in closed court'.

She said this course had been an 'irregularity' and asked if it could be rectified by putting the two charges to the defendant again in open court.

But Judge McMahon said: 'The fundamental question is whether the arraignment was valid. If it was the trial will continue. But if there is some doubt it seems to me that the trial should be aborted.' Judge McMahon made the original order that the whole proceedings should be in camera under Section 123 of the Criminal Procedure Ordinance.

He said it would be better if the ordinance stated that judges might hold part of a trial in closed court.

He said he knew of no provision which enabled a judge to hold part of a trial in camera.

Judge McMahon did not refer to the Bill of Rights which does allow judges to do this.

The judge said he understood that in the coming months video-links were to be available in Hong Kong courts, enabling witnesses in sensitive cases to give evidence without being present in court.