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R v Passau[2016] QDC 294

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Passau [2016] QDC 294 

PARTIES:

THE QUEEN

(applicant)

v

PASSAU, Dooley Lee

(respondent/defendant)

FILE NO:

226 of 2015

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

6 October 2016 (orders)

18 November 2016 (reasons)

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

6 October 2016

JUDGE:

Long SC DCJ

ORDER:

  1. Direct that the evidence of Christopher Van Rees be taken by audio visual link from Santiago, Chile to this Court on 29 November 2016 at 9:00am; and
  2. In respect of the application for Nicholas Steven Aquin, that application is adjourned to a date to be fixed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WITNESSES – POWERS OF A JUDGE – OTHER MATTERS – Where an application was made pursuant to s 39R of the Evidence Act 1977, for the taking of evidence, of both the complainant and a witness, by way of audio visual link, at the defendant’s trial – Where the witness is not an Australian citizen and resides in Santiago, Chile – Where personal attendance would involve a significant cost to the community – Where personal attendance would require a Criminal Justice Visa – Where and in contrast, the complainant resides in Australia but may be called to work in Canada on short notice – Where the complainant has been subpoenaed to give evidence at the defendant’s trial – Where there is an absence of evidence that he will be unable to honour that obligation – Whether it is in the interests of justice to allow either application

LEGISLATION:

Evidence Act 1977, ss 39PR and 39R

Criminal Practice Rules 1999, r 53

CASES:

R v O'Neill [2009] QCA 210

R v Sutton [2015] QSC 110

COUNSEL:

M Gawrych for the applicant

D Crews for the respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the applicant

Bosscher Lawyers for the respondent

  1. [1]
    By an application filed on 28 September 2016, the prosecution sought orders permitting the taking of the evidence of the witnesses Christopher Van Rees and Nicholas Steven Aquin (the complainant), by audio visual link at the defendant’s trial.[1]
  1. [2]
    The defendant trial is listed as the number one trial in the week commencing 28 November 2016. It is expected to commence on 28 November 2016 and extend for two or three days. That trial will be in respect of a charge of attempted armed robbery on 3 April 2014, charged by indictment presented on 20 July 2015.[2]
  1. [3]
    The application was made pursuant to s 39R of the Evidence Act 1977, which provides that:

“(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. (2)
    The court may, at any time, vary or revoke a direction made under this section on its own initiative or on the application of a party to the proceeding.”
  1. [4]
    It may be noted that r 53 of the Criminal Practice Rules 1999 also makes provisions for orders of the kind sought but the provisions of that rule neither add to nor detract from the provisions of s 39R, which sufficiently provides for the power to which the application is directed.
  1. [5]
    The application was heard on 6 October 2016 and it was, at the conclusion of that hearing, ordered that:
  1. The evidence of Christopher Van Rees be taken by audio visual link from Santiago, Chile to this Court on 29 November 2016; and              
  1. In respect of the application for Nicholas Steven Aquin, that application was adjourned to a date to be fixed.

What follows, are the reasons for those orders.

  1. [6]
    It is sufficient to note the following facts upon which the Crown case is premised:
  1. (a)
    On Friday 3 October 2014, the complainant and his wife left the Prickly Piñata restaurant, on the esplanade at Cotton Tree, near Maroochydore, at about 8:10pm and proceeded to walk to their car, which had been parked near to the restaurant and on the esplanade.
  1. (b)
    As they reached the car, the complainant noticed a person who was then unknown to him (but later identified by him in a video line up procedure as the defendant) to approach them and say, “you shouldn’t be driving, you’ve had too much to drink”.  The complainant’s wife replied that she had only had ginger ale and the person identified as the defendant, approached the complainant and stated, “give me $20 or I’m going to call the cops and tell them you’ve been drink driving”.  After the complainant said he did not carry cash, the defendant again demanded $20.  Then the complainant said, “are you joking”, threw his phone into the car and closed the door.  He then describes the defendant opening his jacket and displaying a knife that was in the waistband of his pants.  It is described as looking like a hunting knife with an 8 inch blade and about 14 inches in length.  The complainant then said, “you’re shitting me? You are pulling a knife on me”,  and he stepped back so that he could see people in the restaurant and yelled out to them to call the police.
  1. (c)
    It is then described that by this point, the defendant was holding the knife in his right hand but as the complainant again called out for someone to contact the police, the defendant walked away across the road and towards a barbecue canopy in a park area.  The complainant describes calling out after him and angrily throwing a small stick in the defendant’s direction.  He describes seeing the defendant walk over to the barbecue area and to another male and female and then seeing them packing up things and putting them in a car.  He recalls the female screaming loudly at he and his wife.  He also describes another or second male person walking over the road towards him and standing about 20m away from where he was standing and then returning to the other side of the road and inviting the complainant to fight, as he was jumping up and down and yelling, before he walked over and got into a car which was being driven by the female and then observing the car being driven off.[3]
  1. [7]
    Although the materials provided on the application did not include any statement from her, it may be expected that there is also evidence to be given by the complainant’s wife.
  1. [8]
    As to the witness Christopher Van Rees, he describes being in Australia from 15 June 2014, on a six-month student exchange to the Melbourne University, from Chile in South America. As he had completed his studies, he was undertaking travel in Australia and he had travelled to the Sunshine Coast for a holiday with a girlfriend. He describes that:
  1. (a)
    At about 6 or 7:00pm on 3 October 2014, he was using a public barbeque area on the esplanade at Cotton Tree, Maroochydore with his girlfriend and that at about 7:45pm, four people arrived in a dark-coloured car at the adjacent barbeque area.  He describes that there were two adult men, an adult female and a male child.  He describes the adults as appearing intoxicated and observed that they had cans of alcohol.  He provided various descriptions of the persons, including the person who, on the prosecution case, is the defendant and who was observed to have a significant scar on his face (consistently, it is contended, with the appearance of the defendant).
  1. (b)
    He describes that male with the scar conversing with him, as they were in close proximity using the barbeques. Apart from various observations as to some indications given as to this male’s association with the others and the child, Mr Van Rees describes being shown a knife which he describes as a double-sided blade, with one side being straight and the other side being rippled or saw-like, that it had a black handle and a compass on the end and that it was about 20cm long with a handle about 10cm in length.  He describes that the man took the compass off and displayed that there was inside the handle a survival kit, matches, sunscreen and fishing kit.
  1. (c)
    Shortly after and as he was sitting at a picnic table where he and his girlfriend ate their food, the witness describes hearing yelling and shouting from across the road.  He describes observing the male with the scar standing across the road with another male.  He describes it being near a bar, and about 100m away from where he was seated.  Although it was dark, there was some street lighting nearby.  He describes that the other male was yelling loudly and he saw other people coming over to him from nearby.  He further describes seeing the male with the scar on his face walking back across the road from the barbeque area, as the other male was still yelling and then other people also started yelling at the male with the scar.
  1. (d)
    He then describes the male with the scar getting into a car with the female and the other male and child with whom he had arrived, and observing them drive away.  He states that not long after that, police arrived and took details from he and his girlfriend and that he later gave a statement, on 5 December 2014 and in which he noted that he was due to return to Chile on 20 December 2014.
  1. [9]
    The prosecution will also rely on evidence that after his arrest and on route to the Maroochydore police station, the defendant admitted to asking the complainant for money but denied robbing him and also, admitted to showing a knife to the complainant but only in response to feeling threatened.
  1. [10]
    As is noted in R v O'Neill [2009] QCA 210 and R v Sutton [2015] QSC 110, any application of s 39R requires consideration of what is in the interests of justice, in individual cases. Further and particularly drawing on some observations made by Burns J in R v Sutton,[4]it is to be noted that an application pursuant to s 39R may be approached by having regard to:
  1. (a)
    the type of consideration expressly set out in the subsequently introduced s 39PR of the Evidence Act;
  1. (b)
    that generally it will be necessary to consider the nature and scope of the evidence to be given, whether the evidence is in contest and the extent to which credit and reliability of the witness will be in issue, whether the proposed link will be sufficient for the jury to properly assess the evidence;
  1. (c)
    the practicality of the application to receive evidence by audio-visual or audio link, which may include the practicalities or exigencies of conducting the trial here in Australia and issues such as whether exhibits or things, such as documents, need to be referred to and how that is to be managed;
  1. (d)
    the reasons for the application, which may include consideration of the travel, inconvenience and expense involved in bringing the witness to court to give evidence in person; and
  1. (e)
    the extent to which the application is supported by appropriate evidence and bearing in mind the onus on the applicant to persuade the Court that the direction which is sought is in the interest of justice.
  1. [11]
    In relation to Mr Van Rees, the application was originally for an order permitting him to give evidence by telephone, from Chile. It was premised on the contentions that:
  1. (a)
    the witness is not an Australian citizen and resides in Santiago, Chile; 
  1. (b)
    his personal attendance would involve the disruption of travel to Australia, at a significant cost to the community in relation to airfares, accommodation and living expenses whilst here.  An estimate in respect of airfares alone was $4,500; 
  1. (c)
    any such personal attendance would require a Criminal Justice Visa and obviously entail all of the time, effort and resources required to have such a visa issued; and
  1. (d)
    otherwise, there was no impediment to his giving evidence by the use of appropriate technology, which in the case of an audio link, would be a minimal cost.  However, evidence was also presented as to the cost of an audio visual link being:  $610 for the first hour and $500 for each additional hour or part thereof. 
  1. [12]
    No particular prejudice to the defendant was identified, particularly if the link was an audio visual one and without objection, leave was granted for the application to be amended to be for permission to take the evidence of this witness by audio visual link. There was also evidence that this could be achieved, without significant disruption or confrontation of the usual practicalities and exigencies of conducting a jury trial, here at Maroochydore.
  1. [13]
    However and notwithstanding that this appeared rather fanciful, it was contended for the respondent that there was a concern that there may be an issue arising out of the following description in the statement provided by Mr Van Rees:

“14.  Not long after, I heard yelling and shouting from across the road. I looked in the direction of the yelling and saw the male with the scar standing across the road with another male. It was near a bar, about 100 metres away from where I was seated. It was dark but there was some streetlights nearby. The other male was yelling very loudly. I could not hear what he was saying. I saw other people coming over to him from nearby.”

In respect of this, it was submitted that:

“…What the Crown’s attempting to do is to have a witness by phone from Chile describing what we are assuming is the complainant, but we don’t know for sure.  And I would hate to get caught by surprise that it was – if he’s giving evidence by phone, that he raises that the two males were acting in concert as parties.”[5]

It was otherwise confirmed that the real issue, in the case, was as to what the defendant did or did not do in the interaction with the complainant and that “identification is something which isn’t necessarily going to be an issue”.[6] 

  1. [14]
    Critically, it was concluded that there was nothing to suggest that this witness could not be adequately examined and cross examined by way of an audio visual link and the expectation was that his evidence would be completed within an hour. In the circumstances that have been noted, it was appropriate to make the order permitting his evidence to be taken in that way, at 9:00am, on what was expected to be the second day of the trial. This was to accommodate the 13 hour time differential between Maroochydore and Santiago, Chile and the availability of the audio visual link at that time and the usual practicalities and exigencies of conducting a jury trial at Maroochydore.
  1. [15]
    As to the position in respect of the complainant, not only was there the consideration as to the more critical aspect of his evidence, but there may also be difficulties in accommodating his evidence having regard to the practicalities and usual exigencies of conducting a jury trial in Maroochydore. In his case, the proposition was as to evidence by audio visual link from Edmonton, Canada, with a time differential of 16 hours. Whilst there was an estimate of $4,000 as to the cost of airfares from Canada to Australia and expected compensation as to loss of income and for meals, at approximately $165 per day, in this instance the contended comparison was with:
  1. (a)
    the cost of an audio visual link at $610 for the first hour and $500 per additional hour or part thereof; and
  1. (b)
    the additional cost of a return flight from Fort McMurray to Edmonton, at approximately $285.20 and it would appear any additional costs of accommodation and meals that might depend on the timing of his evidence. 
  1. [16]
    However and in the case of Mr Aquin, the substantial difficulty that warranted the order adjourning the application, was that it was simply speculative. This was because it was premised on the understanding that the investigating police officer had informed a legal officer in the Office of Director of Public Prosecutions, that Mr Aquin was working in Canada for several months at a time, in a work camp with limited communication and that someone from the Office of Director of Public Prosecutions had spoken with Mr Aquin, who advised that he is an inspector at the mines and that he is often given very short notice to attend work in Canada and that he can be gone for a few days up to a number of months.[7]It was otherwise understood that he normally resides in the Sunshine Coast area and the submissions for the applicant expressed the preference to have him give evidence in person.  Further and on the hearing of the application, it was confirmed that he had been subpoenaed to do so. 
  1. [17]
    According and as matters stood, that was the obligation of Mr Aquin, pursuant to that subpoena and there was an absence of evidence that he would be unable to honour that obligation.

Footnotes

[1]  Originally, the application in relation to the witness Van Rees was for evidence to be taken by audio link but and pursuant to leave granted on the hearing of the application, the applicant was permitted an amendment to take the application to be read as including an application for evidence to be taken by way of an audio visual link.

[2]  It may be noted that the matter had been previously listed as a number three trial in the week commencing 18 July 2016 but was de-listed when it became apparent that it was not likely to be able to be heard in that week.

[3]  See: statements of Nicholas Steven Aquin, dated 04/10/14 and 06/10/14.

[4]  At [18]-[23].

[5]  T1-5.18-22.

[6]  T1-6.19-20.

[7]  Applicant’s outline of submissions, filed 05/10/16, at [5].

Close

Editorial Notes

  • Published Case Name:

    R v Passau

  • Shortened Case Name:

    R v Passau

  • MNC:

    [2016] QDC 294

  • Court:

    QDC

  • Judge(s):

    Long DCJ

  • Date:

    18 Nov 2016

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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