R v Payne[2018] QDCPR 55

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   By indictment presented on 6 December 2017, the defendant is charged with the offence of raping the complainant [S] on 13 November 2016 at a residence at Eumundi.
2. [2]
   The trial is yet to be listed for hearing, primarily because of this application.  The prosecution effectively apply for allowance of the evidence of the complainant and her identical twin sister, [K], to be taken by electronic means and be pre-recorded from locations outside of Australia and then played to a jury at a subsequent time.
3. [3]
   That application arises because, subsequently to the police investigation of this matter and the charging of the defendant, each witness has left Australia and in the case of the complainant, she is now residing and working in London, with no immediate plans to return to Australia apart from as may be necessary to be a witness in this trial.  For reasons to be noted later, the position of her twin sister was complicated by the evidence in relation to her situation and cannot be presently determined. Accordingly, the immediate focus will be upon the application as far as it relates to the complainant.
4. [4]
   It is convenient to note the following as an uncontroversial and essential summary of the prosecution case, as put before this Court on this application.  

   1. As at 13 November 2016, the complainant and her sister were aged 18 and the respondent aged 22.  They were known to each other as they worked from common employment at the Imperial Hotel at Eumundi.  Also employed there was the respondent’s then girlfriend, Ms [P].  Each of the females were working at the hotel on 12 November 2016.  The complainant finished work about 9.30 pm but waited for Ms [P] to finish work at 11.30 pm.  In the meantime, she consumed three glasses of wine and ginger beer.  They returned to the residence of Ms [P] and the respondent to continue socialising.  The complainant had some more sips of wine there.
   2. Because they had been drinking, the complainant and her sister had planned to stay the night at the residence.  After the complainant had showered and borrowed some clothes to sleep in, she returned to a veranda area where the others were congregated and due to being extremely tired she began falling asleep in her chair.  Someone tipped some water on her to wake her up, as a joke.  She returned to shower again in the bathroom adjacent to a bedroom.  The respondent came there and asked the complainant for something from the shower recess. Whilst covering her nakedness as best she could, she handed the item to him and he left the room.  After this shower, the complainant put on a long t-shirt which she found in the room.  And when she came out of the bathroom, she saw the respondent and Ms [P] were on the bed.  She also put on a pair of tracksuit pants she borrowed from Ms [P] and after a while returned to the veranda and sat down and eventually fell asleep on a couch in the lounge room.
   3. The complainant’s next recollection was of someone touching her vaginal area.  She realised she was lying on her side and that her pants had been pulled down and that she was now in the bed which was that of Ms [P] and the respondent.  She had no recall of going there.  She felt an erect penis push against and then penetrate her vagina as she was being pulled backwards from the hips.  She tried to move away and realised the male person involved was the respondent, who was behind her.  As she kept trying to move away from him he kept pulling her back towards him.  The complainant was able to see that Ms [P] was asleep in the bed next to her and she tried to wake her.  She describes being scared and not knowing what to do.  The respondent finished and removed his penis from her vagina and then just lay there.  He then sat up as if looking for something as the complainant pretended to be asleep.  She felt him pull her pants back up and saw that the respondent went to the other side of the bed and continued to do something with his phone.
   4. After laying there for some time the complainant left the bed and went into the lounge room, where she woke her sister and told her what had happened.  They left, after collecting their things. Later that afternoon when the complainant arrived at work and saw the respondent’s car there, she was upset and she later went to the police.
   5. The complainant’s sister recalls the events of the evening largely as described by the complainant and that her sister was very drunk and tired.  [K] recalls going to sleep in the lounge room on the floor and that her sister was asleep on the couch in that room.  She next recalls being woken up in the morning by the complainant who made a preliminary complaint to her, including telling her sister that she did not know how she got from the lounge room to the bedroom.
   6. Another witness, Ms [O], who was also at the respondent’s house that night, also remembers the complainant being drunk and tired.  She recalls that the complainant was asleep on the couch in the lounge room when Ms [P] retired to bed and that a while later, the respondent announced that the complainant would not be sleeping on the couch and picked her up and carried her to the bedroom.  Ms [O] describes the complainant appearing to be a dead weight in his arms.
   7. In addition the prosecution will rely on evidence to establish that:

1. Photographs identified by the complainant of her genitals and backside, taken from behind her, were found on the respondent’s phone;
2. Medical examination conducted in respect of the complainant on 13 November 2016 revealed a posterior fourchette tear in the 6 o’clock position and that high and low vaginal swabs taken during this examination revealed a mixed DNA sample with a high probability of a person with the same DNA profile as the respondent contributing to that sample; and 
3. Although the defendant declined to be formally interviewed by police, during the search of his house he admitted to having slept with the complainant and in a pre-text phone call he admitted that he had “fucked up”.

The Applications

5. [5]
   The prosecution seek an exercise of the Court’s discretion to order that: 

   1. Each of the sisters give evidence from a location outside of Australia by audio-visual link, as permitted by s 39R of the Evidence Act 1977; and

2. There be modification of what may be regarded as the usual practice of the court, to permit measures allowed pursuant to s 21A(2) of the Evidence Act 1977, to be applied to the taking and receipt of the evidence of each of the twin sisters.  In each case, that is premised on the fact that each of them is a “special witness”, within the meaning of the definition in s 21A(1).  In particular, it is sought that each of them give evidence in a room other than that in which the court is sitting (pursuant to s 21A(2)(c) and, by implication, by utilisation of an audio-visual link to that room).  And do so with the presence of an approved support person (pursuant to s 21A(2)(d)).  And that a video-recording of the evidence of each witness be made and be viewed and heard in the proceeding instead of the direct testimony of that special witness (pursuant to s 21A(2)(e)).

6. [6]
   Accordingly and in each instance, the prosecution contention is that each witness is to be regarded as a special witness pursuant to paragraph (b) of the definition in s 21A(1), in that each “would, as a result of … a relevant matter, be likely to be disadvantaged as a witness”.  And more specifically in the case of the complainant, pursuant to paragraph (e) of that definition, in that she is:

“a person – 

1. Against whom a sexual offence has been, or is alleged to have been, committed by another person; and

2. Who is to give evidence about the commission of an offence by the other person.”

7. [7]
   On either or both bases, the prosecution application seeks to engage s 21A(2) and the adoption of such measures as have been noted above as being specifically allowed by that sub-section.  In that respect, it was acknowledged that the adoption of such measures involves a departure from what might otherwise be regarded as the usual or standard practices of the court, by exercise of judicial discretion.

The Discretion

8. [8]
   That discretion is not expressly qualified nor restricted in any way, save that there is the condition precedent for the exercise of the discretion that “a special witness is to give or is giving evidence in any proceeding”.  It may also be observed that the express recognition that such orders or directions may be of the court’s own motion, is to be seen as more applicable to circumstances that may arise in the course of proceedings before the court when such a witness is giving evidence.  But in instances like the present and by usual application of principle, it is for the applicant, at whose behest the exercise of discretion is sought, to satisfy the court that it is appropriate to do so.
9. [9]
   However, it can be noted that the statutory context differs as to the alternative bases upon which the application is made. If s 21A(1)(b)(i) is engaged and the witness found to be a special witness on the basis that she “would, as a result of… a relevant matter, be likely to be disadvantaged as a witness”, then such a conclusion not only provides for that pre-condition but also serves to inform an exercise of discretion as to what measures pursuant to s 21A(2) are appropriate, in the particular circumstances and because of that likely disadvantage.  By contrast, the effect of s 21A(1)(e) is to provide that a particular category of witness, and into which the complainant here unquestionably falls, is to be regarded as a special witness and to otherwise provide no test or touchstone by which to assess whether and what, if any, measures in s 21A(2) may be appropriately adopted.  Further, it is of some importance to note that, unlike the position legislatively adopted under part 2, division 4A of the Evidence Act 1977 and in relation to “affected child witnesses”, the adoption of any such measure is not mandated.
10. [10]
    It is useful to note the following history of s 21A, as to the definition of “special witness":

    1. When originally inserted by the Criminal Code, Evidence Act and other Acts Amendment Act 1989, the definition of “special witness” included only the following:

“(a) a child under the age of 12 years; or

2. a person who, in the court’s opinion—

1. would, as a result of intellectual impairment or cultural differences, be likely to be disadvantaged as a witness; or
2. would be likely to suffer severe emotional trauma; or
3. would be likely to be so intimidated as to be disadvantaged as a witness, if required to give evidence in accordance with the usual rules and practice of the court.”

2. Sub-paragraph (b) was the subject of amendment pursuant to the Criminal Law Amendment Act 2000 and so as to put it in its current form, as follows:

“(b)  a person who, in the court’s opinion—

1. would, as a result of a mental, intellectual or physical impairment or a relevant matter, be likely to be disadvantaged as a witness; or
2. would be likely to suffer severe emotional trauma; or
3. would be likely to be so intimidated as to be disadvantaged as a witness;   if required to give evidence in accordance with the usual rules and practice of the court.”

Coincidentally, the following definition of relevant matter was inserted: 

“relevant matter for a person, means the person’s age, education, level of understanding, cultural background or relationship to any party to the proceeding, the nature of the subject matter of the evidence, or another matter the court considers relevant.”

3. Pursuant to the Evidence (Protection of Children) Amendment Act 2003 and by which the provisions relating to affected child witnesses were added, as part 2, division 4A, paragraph (a) of the definition was amended by inserting “16” in place of “12”, so that the definition applied automatically to children under 16 years; and what currently appears as sub-section (1)A, was inserted:

“(1A) This section does not apply to a child to the extent division 4A applies to the child.”

4. Subsequently, the current additional definitions of categories of witness that are automatically regarded as being within the definition of “special witness”, were included, in each instance, without any requirement as to finding as to any likely disadvantage or consequence of the requirement to give evidence in accordance with the usual rules and practice of the court.  Those additions occurred respectively, as to paragraph (c) by the Criminal Organisation Act 2009, as to paragraph (d) by the Criminal Law (Domestic Violence) Amendment Act 2015 and as to paragraph (e) by the Victims of Crime Assistance and Other Legislation Amendment Act 2017.

11. [11]
    Whilst for the applicant, it is accepted that (as is also expressed in s 21A) adoption of any of the measures permitted by s 21A does involve departure from what might otherwise be regarded as the usual practices of the court in receiving evidence in a criminal trial, it is correctly pointed out that such statutory provisions are now common and it is also pointed out that the same is true of provisions like s 39R.
12. [12]
    In respect of the latter provision of the Evidence Act, it is contended that even though not expressed in the context of a criminal trial, there is force in the observations of Austin J in Australian Securities and Investments Commission (ASIC) v Rich:^[1]

“It seems to me that these conflicting approaches can be resolved by adopting two principal propositions.  First, the court should strongly encourage the use of current-generation electronic aids to its work, provided they are cost-effective and their reliability has been adequately established, recognising that a technological innovation which saves time and money may be acceptable even if it delivers a product not quite as good as the traditional alternative.  Secondly, there will be exceptional cases where, presented with a choice between taking evidence by electronic means or using the tried and true viva voce method, the court will decide there are good grounds for proceeding by viva voce evidence.  If these propositions are accepted, it is unnecessary and unhelpful to argue about whether audio-visual evidence is "for practical purposes, the same" as viva voce evidence.”

13. [13]
    In respect of the engagement of s 39R, in criminal matters, and after noting that a provision allowing for similar orders appears as r 53 of the Criminal Practice Rules 1999, I have previously observed:

“[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, it is to be noted that an application pursuant to s 39R may be approached by having regard to: 

1. the type of consideration expressly set out in the subsequently introduced s 39PB of the Evidence Act; 
2. 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;
3. 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;

4. 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 
5. 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.”^[2]

14. [14]
    However, there is difficulty in placing reliance, as the applicant did, on the observations in R v Lodhi,^[3] because of the effect of the statutory provision that was the context for them.  That was s 15YV of the Crimes Act 1914 (Cwth), which had the effect of mandating, in proceedings for terrorism and related offences and upon appropriate prosecution application, that a witness give evidence by video-link:     

“unless the court is satisfied that giving the direction or making the order would have a substantial adverse effect on the right of the defendant in the proceeding to receive a fair hearing”.

15. [15]
    Similarly and although there was a similar combination of applications involved, reliance upon the decision in State of Western Australia v SBA^[4] is also of little use.  In the first instance and in respect of the successful application to have the complainant in respect of sexual offences declared a special witness, it is to be noted that s 106R(3)(a) of the Evidence Act 1906 (WA) provides a test which includes a presumed starting point and reversal of the onus to a respondent.  Relevantly, it provides:

“….in any proceeding for a serious sexual offence an order must be made under subsection (1) in respect of the person upon or in respect of whom it is alleged that the offence was committed, attempted or proposed unless the court is satisfied –

1. that subsection (3) does not apply to the person; and
2. that the person does not wish to be declared a special witness.”

Also, the application there did not extend to seeking any pre-recording of the complainant’s evidence and the application for evidence pursuant to audio-visual link was unsuccessful, largely having regard to the potentiality of pragmatic difficulty in managing such a link and the time differentiation to Germany, with the demands of conducting a trial by jury. 

16. [16]
    In the present case, it may be seen that those latter difficulties will not be present if, as the applicant seeks, a measure adopted in respect of the complainant’s evidence includes the pre-recording of her evidence. And in that sense, the combination of applications may be seen as complimentary.
17. [17]
    As far as this application is premised upon the court finding that the complainant is a special witness within the meaning of paragraph (b)(i) of the definition of “special witness”, it is understood that at the time of the alleged offence, the complainant was aged 18 and that she is now aged 20 years.  At its highest, the evidence particularly relevant to this limb of the application is that:

    1. About six months after 13 November 2016, she decided to move away from her residence with her mother on the Sunshine Coast because she was scared of coming across the defendant wherever she went and “decided to move somewhere else where [she] felt more comfortable with [her] surroundings”;
    2. After that she went to New Zealand, to see her father for some months, before travelling to the United Kingdom, where she presently resides and works.  And she has no plans to return to Australia (except as may become necessary for this trial) and only plans for a vacation trip into Europe and return to the United Kingdom on 28 August 2018. Otherwise, she may return to New Zealand for Christmas;

3. As to the prospect of giving evidence in the presence of the defendant, she said that she would be “frightened” and would “freak out” and would “feel scared” and:

“That the thought of having him in front of me was one of the things I thought about for over a year now and it frightens me.  And I don’t know how I’d react …. I would feel completely uncomfortable.  It’s just not a situation I would want to be in right now, especially how far I’ve come in my life.”

She added that she thinks about the events of 13 November 2016, “may be twice a week” and that:

“It makes me feel disgusting, just really low, just um – just not ideal for how a person should feel”;

4. She said she had found the process of giving her statement to a police officer to be “really hard” and that she had a work colleague there for support; and
5. It was noted that she became teary when answering these questions by audio-visual link and said that she thought that giving her evidence in a courtroom to a jury of strangers would affect her “a lot more” than how giving evidence was then affecting her:

“In the way that I’d just feel just weird talking to a bunch of strangers about something I find very personal and that I can barely talk to my own family about.”

18. [18]
    Otherwise and perhaps overriding any such considerations, is the applicant’s submission that the more recent inclusion of the complainant within paragraph (e) of the definition of “special witness” “is a legislative acknowledgment that such witnesses are vulnerable” and that accordingly, all that would remain would be the exercise of discretion as to which, if any, of the measures are to be adopted pursuant to s 21A(2).  Whilst such an exercise of discretion would necessarily require regard to be had to the practicalities or exigencies presented by the adoption of any particular measure, the applicant’s submission also appropriately recognised that the discretion reposed in the court also required consideration as to whether, in an individual case, any such measure should be adopted at all, by having regard to the position of the particular witness.  
19. [19]
    An obvious difficulty with any conclusion that automatic inclusion within the definition of “special witness” also automatically engages any measure allowed by s 21A(2), is that any such acknowledgment of such vulnerability has not been converted into any particular statutory consequence. In the context of the other provisions in s 21A and the history of the section, it may be discerned that the vulnerability to which the section is directed is represented by those concerns expressly addressed in s 21A(1)(b). Obviously, the extent of any such vulnerability of particular witnesses may vary. However and significantly, it must be noted that in stark contrast to paragraph (b) of the definition of special witness, none of the other categories require any finding of “likelihood” as to “disadvantage as a witness”, or “severe emotional trauma”, or “intimidat[ion]” so as to “disadvantaged as a witness”.
20. [20]
    A further contrast may be seen with the way in which the statute deals with evidence to be taken from “affected child witnesses”.^[5]  In that case, it may be discerned that the extent of expected vulnerability of such children and particularly in the apparent power imbalance involved in such witnesses giving evidence against allegedly abusive parents or other relations or other adults, warrants the adoption of such measures as a matter of course. However and pursuant to s 21A, not only is an application necessary, which leaves open the prospect of appropriate choice by a particular witness to give evidence without the adoption of any measure, but also the need for exercise of the court’s discretion as to the adoption of any such measure.
21. [21]
    As the above noted history of the definition of “special witness” demonstrates, there has always been the inclusion of children in paragraph (a), originally being those under 12 years of age, and since the introduction of the provisions in respect of “affected child witnesses”, the remaining applicability is to all other child witnesses under 16 years.  The experience of the court may be observed to have largely been the recognition of the utility of the adoption of available measures in respect to the taking of evidence of children and particularly younger children.  In that respect, it may be observed that the subsequent introduction of the definition of “relevant matter”, for paragraph (b) of the definition of “special witness” includes age of the witness and that the contextual introduction of the mandated measures for “affected child witnesses” serves to underscore the appreciation of the utility of pre-recording the evidence of child witnesses and so as to facilitate obtaining it and to allow for the preservation of it, for re-use if necessary, and to do so at the earliest practicability.
22. [22]
    Whilst it may be further noted that the option of pre-recording of evidence pursuant to s 21A(2)(e) has been included since the introduction of s 21A, the feasibility of doing so has been substantially improved by the provision of facilities that have been provided to courts to enable the requirement to do so in the case of affected child witnesses.  And s 21A(6) was also amended, when the amendments in respect of affected child witnesses were effected,^[6] so as to make any such video-recording (prerecorded or not) admissible in certain subsequent proceedings.
23. [23]
    It is also to be noted that this evolution of measures available for use in court proceedings has not just developed with the evolution of audio-visual technology but also the advancement of community understanding of potential barriers to the effective obtaining of reliable evidence from some types of witnesses.

24. [24]
    There is nothing in s 21A which warrants any conclusion that any of the measures allowed under s 21A(2) are to be adopted for any particular special witness, as a matter of course. However, what may be accepted is a legislative acknowledgement of, at least, the prospect of such vulnerability of a special witness, such as to warrant the allowance of measures that may be adopted so as to avoid any prospect of disadvantage, intimidation or severe emotional harm to such a witness.  However and apart from the application of paragraph (b) of the definition, there is absence of need to find any “likelihood” of disadvantage, intimidation or harm to a witness. Because the test for paragraph (b) is expressed in terms of a particular degree of expectation of such a consequence of the adoption of the usual practices in taking evidence, which in context may require proof of likelihood in the sense of a substantial chance, or a real and not remote chance and more than a mere possibility, as opposed to being more likely than not,^[7]  it should be concluded that in the other instances, the intended starting point is the mere possibility and hence an expectation that appropriate measures will often or usually be adopted. But even then, the absence of any more specific test leaves the difficulty, in the absence of any particularly identified prospective consequence for an individual witness, of any touchstone as to what measure or measures may be appropriately adopted.
25. [25]
    However it is also necessary to note, particularly in comparison to the potential application of the provisions relating to affected child witnesses, the considerably wider ambit of potential application of s 21A, both in terms of matters and types of witness. Further and in the absence of the provision of a specific test, the court is required to exercise a discretion which includes the balancing of all relevant considerations, including any prejudice to, or effect upon, the provision of a fair trial for the defendant.  Although, it is also to be noted that the prospect of any prejudice due to the fact of the adoption of such measures has been anticipated by the jury directions mandated by s 21A(8).  As to the concept of a fair trial and as was noted by Whealy J in R v Lodhi,^[8] the concept of a fair trial is not to be equated with a perfect trial and it is now the common experience of courts, including this court, that juries are required to and do not appear to encounter difficulty in assessing the credibility of evidence presented to them in audio visual form.

26. [26]
    Accordingly, the starting point is the statutory perception of the prospect, or possibility, of the type of vulnerability to which s 21A is addressed and an expectation of engagement of s 21A(2).  The absence of any express statutory test so as to provide a touchstone for determination of what, if any, measures may be appropriate to a given case, means that the question as to whether the adoption of any such measure is an appropriate exercise of discretion is to be considered only with the guidance to be obtained from the context of the other provisions of s 21A. The definition of “relevant matter” may provide some guidance as to factors to be considered in determining whether it is appropriate to engage any one or more of the measures allowed in s 21A(2).  In many instances and as is the experience of the court, the presence of such prospect of vulnerability will be palpable, without the need for any detailed examination of the circumstances, whether due to the age of the witness or the circumstances of the case or having regard to the relationships involved and the nature of the evidence to be given.  For this reason and as a matter of experience, often applications pursuant to s 21A are unopposed, save as to particular issues as to the practicalities and exigencies of the adoption of any particular measure.
27. [27]
    However, s 21A reposes a discretion in the court and therefore, where there is opposition to the making of an order, there will be the need for individual determination.  Such instances may not be decided upon assessment of the mere prospect of such vulnerability. Rather, the necessary focus will be particularly upon the possibility that a particular witness may be disadvantaged or intimidated as a witness, or in an appropriate case, the possibility of severe emotional trauma.  Further and because of absence of statutory intent or purpose as to any automatic engagement of any of the measures provided in s 21A(2), what is required is such prospect as a matter of reality, having regard to the individual circumstances rather than in the theoretical sense of a mere possibility, or because of experience in other cases or more generally. 
28. [28]
    Notwithstanding such an understanding, it remains the obligation of a court to ensure a fair trial of an accused person and the application of the presumption of innocence, until the guilt of an accused is established beyond reasonable doubt. In the end the Court is required to exercise a discretion which, except for the engagement of paragraph (b) of the definition of “special witness’, is unconstrained and unfettered but which must be exercised judicially and for the purposes of the statutory provision. As is well understood, such an exercise requires ascertainment of the relevant circumstances and the assessment of weight to be ascribed to competing considerations, so that an appropriate exercise of discretion occurs in the balance to be struck having regard to such competing considerations.
29. [29]
    Further and particularly where, as is the case here, the resolution is not immediately or readily apparent, it may be necessary to take evidence and allow cross-examination of the witnesses, in order to provide procedural fairness.  In the context of the making of the application and as was not contested in this instance, as a matter of practicality it may be necessary to engage the very provisions sought to be otherwise allowed and for the purpose of determining the application.

Discussion

30. [30]
    The objection by this defendant to the adoption of any of the measures allowed by s 21A(2), was particularly predicated upon contentions as to:

    1. Inadequacy of evidence to satisfy s 21A(1)(b)(i);
    2. Providing a fair trial of the defendant, in a case where the credit of the complainant will be a central and paramount issue;
    3. The interests of justice including the “right of a defendant to have his accuser face him to bring these allegations”; and 
    4. An expressed concern as to the potential for discussions between the complainant and other witnesses and particularly her sister, should the evidence of the complainant be pre-recorded in advance of the remaining trial process.
31. [31]
    As has been noted, the complainant is a young woman, now aged 20 years, and the complainant in respect of the defendant’s alleged rape of her when she was aged 18 and described as occurring in circumstances that would amount to a gross and disturbing violation, by a known associate or friend, of her integrity and vulnerability.^[9]  Whether or not the evidence before the Court as to her position as the central witness in the forthcoming trial of the defendant as to that allegation is sufficient to satisfy s 21A(1)(b), her evidence to the Court provides a basis for concluding, and it should be concluded, that as a matter of reality in the circumstances, there is a distinct prospect of her disadvantage as a witness, if the usual rules and practices of the court were adopted. That is particularly evident in terms of her expressed concerns as to being confronted by such a number of strangers in giving her evidence in a courtroom. Whilst she generally appeared to manage the process of giving evidence by audio-visual link on this application without significantly discernible difficulties, it was to be noted that it was not without some discernible and apparently genuine display of some emotional distress.
32. [32]
    The defendant’s assertion of his “right… to have his accuser face him to bring these allegations”, may be contrasted with references in some of the authorities to a right of a defendant to confront an accuser.^[10]  However, and as the latter formulation more clearly suggests and as was explained in R v Davis,^[11] it may be noted, upon the recognition of:

“a long established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence”; any such consideration is to be viewed as particularly encompassing the requirements of procedural fairness and particularly in provision of an opportunity for crossexamination, challenge and contradiction of an accusation.  To the extent that there may be wider ambit to such a right and as recognised at common law, a particularly identified concern was derived from the experience of “The Inquisition” and the “Court of Star Chamber” and the adoption of procedures where the determination of an accusation occurred in respect of evidence given secretly by anonymous witnesses and in the absence of the accused.  As further recognised,^[12] the common law has long recognised exceptions to such right and that further exceptions have been enacted by statute. 

33. [33]
    As is further noted in these judgments, the expression in the sixth amendment to the United States Constitution that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him”, has “no exact counterpart in English common law”.^[13] And in R v Ngo,^[14] and in a case concerned with the taking of evidence by audio-visual link at trial and where a particular issue of concern was the inability of the defendant to observe the faces of the witnesses on the video screen, it was observed:

“In Maryland v Craig 497 US 836 (1990) the United States Supreme Court held that evidence received by way of one-way closed circuit television was not contrary to the Sixth Amendment to the Constitution.  There was no absolute right to a face-to-face trial with witnesses.  The majority judgments identified the key issue as being the ability of the accused to ensure the reliability of such testimony by rigorous adversarial testing.”

34. [34]
    And further, it may be noted that in R v West,^[15] it was recognised that even prior to the introduction of s 21A to the Evidence Act 1977, the common law recognised power to direct that an accused be obscured from the view of a witness who was likely to be intimidated by the presence of the accused.
35. [35]
    In the present instance, s 21A is a statutory intervention allowing modification of the usual practices of the court but, it can be observed, not in any way that prevents the confrontation of the witness by cross-examination, challenge or contradiction of the accusation made.  In any event, what cannot be accepted is that a defendant has any “right” to insist on the prospect of any witness being put at a disadvantage in giving evidence, nor to achieve such disadvantage through intimidation whether through his or her presence or otherwise, and nor to risk severe emotional harm to be occasioned to any witness.  However, it should be noted that it does remain necessary to understand that the application of s 21A does require the identification of a basis for departure from the usual rules and practices by which witnesses give evidence in the Court.  
36. [36]
    As has already been noted, it is not apparent that there is any particular prejudice to or inability as to the provision of a fair trial for the defendant, by the adoption of a measure such as allowing the audio-visual link for the purpose of the complainant giving evidence.  The Court is now well experienced in the regular provision of such trials, where complainants in respect of similar offences are affected child witnesses and give evidence by pre-recorded audio-visual link.  Usually, the credit of such witnesses is in issue and often the critical issue in such cases.  Here and whilst the contention is made that the credit of the complainant will be the central issue in the trial, the defendant chose (as was his right) not to elaborate or indicate how or in what respect that may be so.  Given the outline of the prosecution case noted above, it may be discerned to be likely that the issue will resolve around the complainant’s consent or perhaps and depending upon the evidence that emerges, an honest and reasonable but mistaken belief of the defendant that she had given consent.  But even in respect of such prospect, it may be discerned that the prosecution position is clear that the complainant was obviously not conscious and therefore not in a position to give her consent to the sexual act and that in those circumstances, there are no presently apparent reasonable grounds for any mistaken belief as to her having given her consent.  
37. [37]
    It was the defendant’s position that such observations in respect of the apparent strength of the prosecution case were irrelevant to the issues to be determined in this application.  Whilst it may be correct that the primary focus of the application made pursuant to s 21A must be upon the circumstances of the witness and her relationship to the defendant and the nature of the subject matter of the evidence the witness is to give, the definition of ‘relevant matter” specifically includes “another matter the court considers relevant”.  And it is therefore difficult to see how such a consideration must necessarily be regarded as irrelevant, for instance, to an understanding of any sense of apparent reality in the concerns as to a witness being disadvantaged or intimidated in giving his or her evidence.  However and for obvious reasons, such a consideration should not be given any primal weight and the weight to be given to such a consideration and as to the relative weight to be given to any competing considerations, may vary from instance to instance in the exercise of the Court’s discretion. 
38. [38]
    However, different considerations arise in respect of the application of s 39R of the Evidence Act 1977 and where the exercise of discretion seeks to achieve a balance according to an assessment of the overall interests of justice in a particular case. And it is also in relation to this aspect of the application that the expressed concern of the defendant as to heightened potential for inappropriate discussion between witnesses, arises.  A starting point is that the concern is a speculative one and the adoption of a trial process, even if the evidence of the complainant was allowed by audio-visual link, where the trial occurred in one integrated process, does not necessarily alleviate the concern.  That is because of the necessity to take evidence sequentially, as may occur over a period of days, with breaks during and between the days involved.  Experience would suggest that usually any such collusion that has any significant influence on the evidence of later witnesses becomes apparent and is the subject of cross-examination.  That is because it is necessary to understand that the commencement point for the trial is that there is a proof or understanding of the evidence that each prosecution witness is expected to give.  However, it should be recognised that should the evidence of the complainant be pre-recorded, in advance of the remaining trial process, that may increase the potential for there to be some discussion of her evidence and the issues raised with her, with other witnesses.

39. [39]
    As was conceded for the defendant, any concern about communication between sisters would be lessened by the prospect of the taking of their evidence at a more proximate time.^[16] However that may not be feasible, particularly because of what was noted as to the limitation of evidence in the case of the complainant’s sister, such as to satisfy s 21A(1)(b). 
40. [40]
    The point also raises, indirectly, another relevant consideration and that is that the effect of a pre-recording of the evidence of the central witness in the trial is to bifurcate the trial process.  And, sight should not be lost of the fact that this imposes upon the parties and particularly the defendant, the potentiality of some duplication of the allocation of resources and cost incurred in respect of the trial process.  This will be particularly so if there is a longer rather than shorter interval between the prerecording and the remaining trial process with the jury.
41. [41]
    Otherwise, it may be noted that given the experience of the Court on this application, it should be expected that an adequate and appropriate audio-visual link may be established to London and that leaving aside considerations as to comparative cost to the prosecution, that would avoid considerable travel and inconvenience to the complainant, in circumstances where she is for the foreseeable future living and working in the United Kingdom. However, that experience involved having to cater for the time differential to London and the Court sitting from about 3:00 pm and beyond what might be considered the usual or desirable conclusion of taking evidence, on any given day, in a jury trial.
42. [42]
    It is of course necessary to note that if she is allowed to give evidence from London, the complainant is not immediately amenable to any compulsive processes of the Court, as would be the case if she was giving her evidence from within the geographic jurisdiction of the Court. This would not appear to be a concern of any substance, given her interest in the proceedings and what may be expected as to her co-operation as to when she may be required, including in the event that it may be necessary to recall her after she had completed her evidence. Such a prospect is expected to be avoided as far as possible in the conduct of proceedings and as a matter of experience does not occur frequently or without difficulty, even when the witness has given evidence within the geographic jurisdiction of the Court. And it is not unusual in such infrequent instances for technology to be utilised so that such further evidence is taken remotely.
43. [43]
    In the case of the complainant’s sister, she may only be regarded as a special witness, if the definition in s 21A(1)(b) is satisfied.  As was effectively conceded by the applicant in final submissions,^[17] there was an even less sufficient basis laid in the evidence for any such conclusion.  As to the remaining basis of the application for evidence by audio-visual link pursuant to s 39R, the accepted reality is that the application may not be finally resolvable until there is a trial listing, and there is a concrete proposal as to when and how such an audio-visual link may be established.  This is particularly because of:

1. The expected fluidity of the movements of the witness.  In her evidence, she also described leaving the Sunshine Coast region due to a feeling of discomfort at what she knew of the incident the subject of the charge.  She also went to New Zealand, before travelling to Japan for three months and then returning to New Zealand.  She gave her evidence by audio-visual link from Whangarei. And without descending into detail and for various reasons, she has expectations of returning to Australia and possibly the Sunshine Coast, in the foreseeable future;
2. The experience of the connection to Whangarei on the hearing of the application was of a connection of such poor quality, as to be inappropriate for use to take her evidence at trial; and
3. Generally there is such uncertainty as to the competing considerations that may arise in the application of s 39R as to presently preclude such determination.  

In short, the determination of the application, as far as it relates to the complainant’s sister, must await a trial listing and if it is to be pursued, some definite and discernibly feasible proposal as to how the evidence may be received without significant dislocation of the usual trial process, before the merits could be considered. 

Conclusions

44. [44]
    Having regard to those considerations that arise in the exercise of discretion pursuant to s 21A(2) of the Evidence Act 1977, it is appropriate to conclude that the complainant’s evidence be given by audio-visual link to the courtroom. Once that conclusion is reached, the prospect of her doing so by such a link from London, is clearly enlivened and it is then difficult to see how it would not be appropriate to do so in the interests of justice and to pre-record her evidence, so as to avoid the prospective management difficulties in the presence of the jury. In the circumstances that have been outlined, there is no apparent prejudice to the defendant, such as will not be the subject of direction pursuant to s 21A(8), nor any basis upon which to conclude that he will not have a fair trial of the allegation made against him. 
45. [45]
    Therefore, the orders will be:

1. The application made regarding the taking of evidence of [S] is allowed and it is directed that:

1. [S] is to give evidence in a room other than that in which the Court is sitting and from which all persons other than those specified by the Court are to be excluded.
2. Pursuant to section 39R of the Evidence Act 1977, that evidence may be given from London in the United Kingdom.
3. Whilst [S] is giving evidence, a person, to be subsequently approved by the Court, may be present whilst she is giving evidence to provide emotional support.
4. That evidence is to be video-recorded and is to be viewed and heard in the trial instead of the direct testimony of [S].

2. The application made regarding the taking of evidence of [K]  is adjourned to a date to be fixed.