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R v Wee[2015] QDC 114

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Wee [2015] QDC 114

PARTIES:

THE QUEEN

v

BENJAMIN KAI WEE

FILE NO/S:

1467/14

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

8 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

5 and 7 May 2015

JUDGE:

Smith DCJA

ORDER:

I direct that the witness Mark Thomas give evidence via audio visual link from Minneapolis, Minnesota, USA at the trial of the defendant. 

CATCHWORDS:

CRIMINAL LAW- MATTERS RELATED TO PROOF- WITNESSES- Whether eye witness should be called by video link

Evidence Act 1977 (Q) s 39R

Criminal Practice Rules r53

BUSB v R (2011) 209 A Crim R 390

R v Goldman (2004) 148 A Crim R 40

R v Kim (1998) 104 A Crim R 233

R v Ngo (2003) 57 NSWLR 55

R v Strawhorn [2004] VSC 415

R v Sutton [2015] QSC 110

R v West [1992] 1 Qd R 227

COUNSEL:

Mr S. Bain for the Crown

Mr D. Wilson for the defence

SOLICITORS:

Director of Public Prosecutions (Q) for the crown

Russo lawyers for the defence 

  1. [1]
    These are my reasons for permitting the crown to call a witness by video link from the USA at the trial of the defendant which is to commence on 11 May 2015. I made the order on 7 May 2015.

Introduction

  1. [2]
    This is an application by the Crown for a witness, Mark Thomas, to give evidence via video link. The defendant’s trial is due to start on Monday 11 May 2015. The defendant is charged with one count of assault occasioning bodily harm on Michal Zoltkowski at Fortitude Valley on 17 October 2013. The defendant was a security guard at Ric’s Bar.
  1. [3]
    The witness is presently in the United States. He entered the USA on 30 April 2015 and has a valid visa for 6 months.

Background

  1. [4]
    Mr Thomas, in his statement dated 6 November 2013, says that on 17 October 2013 with others he caught a bus to the Valley at about 9 p.m. and went to Ric’s Bar. A friend of his, Ryan Bullivant, was not allowed in. Mr Thomas then saw Mr Bullivant talking to the defendant, asking why he was not allowed in.  Mr Bullivant still was not allowed in.  He then wanted to speak to the manager.  Mr Thomas then met up with another group including the complainant.  One of the security officers then approached Mr Thomas and said, “I’m gonna fuck you up,” and yelled profanities.  At this stage Mr Thomas backed away from him, and he then saw a scuffle between the defendant and Michal.  The defendant pushed Michal, and Michal grabbed the defendant to stop him from falling over.  The defendant then grabbed Michal by the front top of his shirt and dragged him outside the smoking area.  He then grabbed Michal by the throat with his gloved hand, lifted him off his feet, and threw him to the ground.  The complainant’s head hit the ground, it sounding like something hard hitting concrete.  The defendant held him down on the ground for a short time, and then a person from Mr Thomas’s group forced the defendant off the complainant.  At this stage the complainant went into a seizure; his whole body was convulsing.  At this point of time a large group had crowded around the complainant.  A short time later the police arrived.  The ambulance took Michal to the hospital.
  1. [5]
    I am told by the prosecution that Mr Thomas is not the only eyewitness to this event. There are four other eyewitnesses and the complainant. Each of the witnesses alleges the defendant was the aggressor that evening. It is common ground that CCTV footage showed the defendant coming forcefully towards the complainant. There was a movement by the complainant forward, and then the defendant grabbed the complainant and put him to the ground.
  1. [6]
    Exhibit 2 are the depositions. Ryan Bullivant in his statement dated 20 March 2014, confirms he was refused entry to Ric’s bar. He agreed he argued with security staff. He says that he saw a security guard grab Mr Thomas and at that stage the complainant intervened. At that stage the defendant grabbed the complainant by the neck trying to push him onto the street but he did not see the complainant go to the ground.
  1. [7]
    Jacob Clarke confirms that Mr Bullivant argued with security staff. He alleges that bouncers started pushing people out of the smokers’ area. He saw the complainant manhandled by a bouncer said to be the defendant who then lifted the complainant off the ground by the neck with one hand and rammed the back of the complainant’s head into the ground (see [26]).
  1. [8]
    Sebastian Delaile says that a bouncer pushed Mr Thomas in the chest. He describes a friend of Mr Bullivant’s put his arms up to indicate he did not want any trouble. A bouncer said to be the defendant then grabbed him by the throat and slammed his head into the ground (see [11]).
  1. [9]
    Darcy Garlick-Kelly says that he saw a bouncer shove Mr Thomas on the back. Another bouncer then pushed the complainant. The complainant pushed back. The bouncer then grabbed the complainant around the throat and slammed the complainant’s head into the ground (see [28]).
  1. [10]
    The complainant in his statement confirms that a security officer (said to be the defendant) lifted him by the neck and choked him. He lost consciousness after this (see [8-9].)

Other material

  1. [11]
    The affidavit of Sally Dreghorn indicates that a video link will cost $1264 as compared to flights of $2826.30 (which does not include accommodation.)
  1. [12]
    A further affidavit of Sally Dreghorn indicates that the witnesss has a B1/B2 visa to the USA and it has been stressed to him he will not be able to leave and then re-enter the USA. The Customs website states re-admission entry may be more strenuous.
  1. [13]
    I conclude on the material there is a risk the witness would not be re-admitted to the USA if he comes back to Australia.
  1. [14]
    Therefore the cost of the video link is considerable cheaper and there is a risk the witness will not be able to re-enter the USA if he has to give evidence in person.

Submissions by the Crown

  1. [15]
    The prosecution submits:
  1. (a)
    the witness Mr Thomas is currently in the United States of America and is able to give video link evidence from Minneapolis;
  1. (b)
    the Court has the power to receive evidence by audio-visual means;
  1. (c)
    it is in the interests of justice that the evidence be received in that way as the defence is not prejudiced because credibility of the witness can be adequately assessed through the video link evidence;
  1. (d)
    there is a risk the witness may not be able to return to the USA if he is required to give evidence in person; 
  1. (e)
    in all of the circumstances, this is an appropriate case, particularly considering the cost involved of bringing the witness back to Australia, for the witness to give evidence via video link.

Submissions by the defence

  1. [16]
    The defence submits:
  1. (a)
    the evidence from Mr Thomas is crucial to the determination of this charge;
  1. (b)
    the credibility of Mr Thomas is to be directly challenged in cross-examination;
  1. (c)
    the right of the defendant to confront his accuser should prevail over any budgetary and convenience considerations;
  1. (d)
    the Crown has had ample time to serve the witness with a subpoena to attend court;
  1. (e)
    a number of decisions are relied on;
  1. (f)
    the starting point in determining the application is that the defendant has a right to confront his accuser in person at trial.  He is deprived of this right if the order is made;
  1. (g)
    because the evidence of the witness will be directly challenged, his personal appearance should be required.  There are no issues of any detriment to the witness should he be required to attend.

Principles

  1. [17]
    Section 39R of the Evidence Act 1977 (Q) provides:

39R  Queensland courts may take evidence and submissions from external location

  1. (1)
    Subject to any rules of the court, the court may, on the application of a party to the proceeding before the court, direct that a person appear before, or give evidence or make a submission to, the court by audio visual link or audio link from a location inside or outside Queensland, including a location outside Australia. ...”
  1. [18]
    It may be seen there is a wide discretion in the court to permit such evidence.
  1. [19]
    I note that the then Attorney-General in the second reading speech (see Queensland Parliamentary Debates 13 April 1999 at p 960) considered that the provision was facilitative rather than restrictive and that was for the courts to apply the “interests of justice” when considering whether to grant the application and to ensure the trial is conducted fairly and justly. The bill was designed to “…assist courts practitioners, litigants and witnesses in overcoming the twin tyrannies of distance and cost.” 
  1. [20]
    Turning to general principles, in R v Kim (1998) 104 A Crim R 233 it was held by Coldrey J that the “necessary public scrutiny” can occur by video link and that demeanour can be adequately assessed. I agree for a number of years now courts in Queensland have had a system of prerecording the evidence of affected children and it is the experience of the courts that demeanour can be adequately assessed.
  1. [21]
    In R v Strawhorn [2004] VSC 415 Coldrey J held at [3] that:

“For example, the right to confront one’s accuser in the courtroom is not an immutable right as the very existence of the video-link legislation makes clear. A balancing exercise must be undertaken in which the rights of the accused, particularly to a fair trial, must be balanced against public interest considerations which point to the desirability of utilising the video-link technique.”

  1. [22]
    I note that Redlich J in R v Goldman (2004) 148 A Crim R 40 at [18] noted that even if video link evidence has the same qualities as evidence given in court, the right of a party to confront those who testify against them and to do so in the presence of the tribunal of fact should be given great weight.     
  1. [23]
    In R v West [1992] 1 Qd R 227 the Court did note that a willingness to confront an accuser may be the mark of an honest defence.
  1. [24]
    In BUSB v R (2011) 209 A Crim R 390 Spiegelman CJ held that the “test of necessity”[1] when one is concerned with the exercise of the power to screen a witness, must be applied with a higher level of strictness than may be applicable in other circumstances. His honour did note that the right of an accuser to confront his or her accuser is not an unqualified right (see [51-52]). The overriding principle is the right to a fair trial and “what degree of impingement upon that right … will vary from case to case.”(see [83]). 
  1. [25]
    In R v Ngo (2003) 57 NSWLR 55 the New South Wales Court of Criminal Appeal noted that the starting point was the proposition that confrontation is a fundamental right of an accused (see [118]).
  1. [26]
    Burns J in R v Sutton [2015] QSC 110, noted that Rule 53 of the Criminal Practice Rules is in similar terms to section 39R. His Honour with reference to R v O'Neill [2009] QCA 210 considered that the trial judge needs to consider whether it is in the interests of justice to permit the evidence to be given that way. Relevant to be considered are the nature and scope of the evidence, whether the evidence is in contest, whether credit and reliability will be in issue, whether the link will be sufficient for the jury to assess credit, the quality of the link and submissions made (see [19]). Travel and accommodation expenses need be weighed into the equation. 

Disposition

  1. [27]
    There is no doubt that the usual rule is that an accuser should give his or her evidence in open court in front of the accused. Having said that, the legislature has seen fit to enact s 39R reposing in the court a discretion to order video or phone evidence.
  1. [28]
    If Mr Thomas was the only witness against the defendant then it is possible I may have taken a different approach. But that is not the case here.
  1. [29]
    In this case the witness, Mr Thomas, is not the only eyewitness to the event. In addition there is the CCTV footage which I have referred to previously. It seems to me the CCTV footage will be crucial and primary evidence to be relied upon by the jury in this matter. I have been informed that it is possible to have the CCTV footage played to the witness via the visual link.
  1. [30]
    I also consider that a person’s demeanour can be accurately assessed using video link evidence.
  1. [31]
    In all of the circumstances, bearing in mind that Mr Thomas’ evidence is not the only evidence against the defendant, taking into account the cost and inconvenience of bringing him back to Australia (including the risk he might not be able to re-enter the USA), and bearing in mind that in my opinion a person’s credibility can be adequately assessed via a video link, in the exercise of my discretion I propose to accede to the Crown application and order that Mark Thomas give evidence via video link at the trial as I consider it in the interests of justice so to order.
  1. [32]
    I therefore make the order as specified in the order section of the judgment.

Footnotes

[1] This is a reference to those things a court may order in order to carry out the exercise of its powers (see [24-33].

Close

Editorial Notes

  • Published Case Name:

    R v Wee

  • Shortened Case Name:

    R v Wee

  • MNC:

    [2015] QDC 114

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    08 May 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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