R v DL[2020] QDCPR 46

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This an application by the crown for orders that the complainants SK, SEK and SEO be permitted to give evidence via video link from South Korea and that they be pre-recorded and that the pre-recorded evidence be played at the defendant’s trial.

Summary of charges

2. [2]
   The defendant is charged with the following counts:

Complainant SK:

1. (a)
   22 counts of supply a dangerous drug between 12 November 2017 and 12 December 2017
2. (b)
   One count of threats on 13 February 2017
3. (c)
   One count of threats on 3 January 2018

Complainant SEK

1. (a)
   11 counts of supply a dangerous drug in December 2017

2. (b)
   One count of threats on 20 December 2017

3. (c)
   One count of choking in a domestic setting on 21 December 2017

4. (d)
   One count of deprivation of liberty between 21 December 2017 and 24 December 2017
5. (e)
   One count of common assault on 29 December 2017
6. (f)
   One count of deprivation of liberty on 29 December 2017
7. (g)
   One count of threatening violence on 3 January 2018
8. (h)
   One count of common assault on 4 January 2018
9. (i)
   One count of threat on 14 January 2018
10. (j)
    Once count of threat on 15 January 2018

Complainant SEO

1. (a)
   Seven counts of supply a dangerous drug in January 2018

2. (b)
   Six counts of rape in January 2018

3. (c)
   Two counts of recording in breach of privacy in January 2018

4. (d)
   Two counts of deprivation of liberty in January 2018
5. (e)
   One count of threatening violence at night in January 2018
6. (f)
   One count of sexual assault with a circumstance of aggravation in January 2018
7. (g)
   One count of stupefying to commit an indictable offence in January 2018
8. (h)
   One count of choking in a domestic setting in January 2018
9. (i)
   One count of assault occasioning bodily harm in January 2018
10. (j)
    One count of sexual assault in January 2018
11. (k)
    One count of common assault in January 2018
12. (l)
    One count of distributing prohibited recordings in January 2018

Background

3. [3]
   The defendant was 29 years of age at the time of the alleged offences.

SK

4. [4]
   This complainant was 22 years of age at the time of the alleged offending. She met the defendant over Instagram. They formed a relationship and in November 2017 she moved into his flat. It is alleged the defendant forced her to take drugs and demanded sex from her for up to seven times a day. When she tried to leave him he threatened her with a knife. She made a complaint to police on 13 December 2017. A hair sample was taken from her which revealed the presence of the drug Alprazolam.

SEK

5. [5]
   This complainant was a 34 year old escort. The defendant met her at a brothel. She alleges he gave her sedatives on a number of occasions. On another occasion he choked her. On another occasion he locked her in a flat. On another occasion he punched her in the face. On a final occasion he locked her in her flat. There is also alleged discreditable conduct in Melbourne in which she alleges he choked her and raped her.

SK and SEK

6. [6]
   Count 41 is a count alleging that on 3 January 2018 the defendant threatened both of them and threatened to kill them. SEK, after an assault (Count 42) by the defendant, provided a statement to police in March 2018. A hair sample from her revealed the drug Alprazolam.

SEO

7. [7]
   This complainant was 24 years of age. She arrived in Australia from South Korea on a holiday work visa on 16 January 2018 and spoke minimal English. The complainant met the defendant at a restaurant on 16 January 2018. They then commenced a relationship marred by domestic violence. During the course of the relationship, he frequently supplied her with the drug Alprazolam. He raped her and took indecent photographs of her and recorded one of the rapes. Ultimately, she called 000 and made a complaint on 1 February 2018.

Material

8. [8]
   In the affidavit of Emily Duncan dated 13 May 2020 concerning SEO,^[1] SEO indicates that she would not feel supported, and would feel alone and scared if required to give evidence in open court. She is concerned it has been a long time since the offending and she is concerned she will not be able to recall what happened. She would prefer to give evidence from a remote room. Flying to Brisbane would have a negative impact on her life as she is now working full time.
9. [9]
   In the affidavit of Emily Duncan dated 13 May 2020,^[2] SK indicates that it did not matter to her if she gave evidence before a jury. Her main concern is whether she will be allowed into Australia. She has now obtained a UK visa and intends to move there as soon as she is able to.
10. [10]
    In the affidavit of Emily Duncan dated 14 May 2020,^[3] there is an attachment which evidences SEK’s wishes. She indicates she would be scared and afraid to give evidence in front of the defendant, the judge, the jury and the lawyers. Video link evidence would make it easier for her to talk. It would be emotionally hard for her to come to Brisbane but she would if required. She is presently in Sydney.
11. [11]
    In another affidavit of Ms Duncan,^[4] she exhibits a print out of information from the Australian Home Affairs Department which sets out the present restrictions on travel into Australia.

Crown submissions

12. [12]
    The crown submits that the complainants should be permitted to give their evidence via video link and that they be pre-recorded and the video recorded evidence be viewed and heard in the proceeding instead of the direct testimony of the witnesses. Alternatively, the crown seeks the same directions under s 39R of the Evidence Act 1977 (Qld).
13. [13]
    The complainants SK and SEK gave evidence in person during the committal hearing through a Korean interpreter. None of the topics of cross examination involved the violence or sexual offending.
14. [14]
    An indictment joining all three complainants was presented on 6 August 2019. The defence made an unsuccessful application to sever the indictment before Moynihan QC DCJ on 29 November 2019. The trial was listed as a two week trial to commence on 1 June 2020, but due to COVID- 19 restrictions on jury trials, the trial was delisted.
15. [15]
    It is submitted that the complainants are automatic special witnesses. It is submitted that the complainants will have to give distressing and lengthy evidence and the offences are dated and any further delay may exacerbate any stress they are feeling. It is submitted that the credit of the witnesses can be sufficiently assessed by a video link. It is also submitted that it would be costly and there are logistical difficulties in organising the complainants to come to Brisbane within a reasonable timeframe. It is submitted that it is in the interests of justice to make the orders sought by the crown.

Defence submissions

16. [16]
    The defence on the other hand submits that a persuasive case has not been made out to use video link evidence. It is submitted that the credibility and reliability of each complainant will be a central feature of the trial. It is submitted that given the seriousness of the offending and potential punishment, cost whilst relevant, has little bearing. It is also submitted that the crown has not proposed how to deal with the playing of video tapes, showing photographs, translation issues or have an appropriate class of the giving of evidence. In those circumstances, it is submitted the application should be dismissed.
17. [17]
    The defence submits in reliance of R v Wee^[5] there is little corroboration in this case.

Test

18. [18]
    In light of the issues raised by the defence, I adjourned the matter so that the proposed video link (through the Australian Embassy in Seoul) could be tested.
19. [19]
    In my view, the link was clear and videos, photos and other documents (video) could be shown to the witnesses and cross examination could occur.

Discussion

20. [20]
    Section 21A(1)(d) of the Evidence Act 1977 (Qld)  provides that a special witness includes “a person against whom domestic violence has been or as alleged to have been committed by another person.” Domestic violence is defined as “see the Domestic and Family Protection Act 2012 s 8.”^[6]
21. [21]
    Section 21A(1)(e) further provides that a special witness is “a person against whom a sexual offence has been or is alleged to have been committed by another person.”
22. [22]
    In this case, all three complainants are automatic special witnesses pursuant to s 21A(1)(d) or (e) of the Evidence Act. The alleged offending was committed in a domestic violence context in respect of all complainants and sexual offending occurred in respect of the complainant SEO.
23. [23]
    Section 21A(2) of the Evidence Act provides:

“21A Evidence of special witnesses

3. (2)
   Where a special witness is to give or is giving evidence in any proceeding, the court may, of its own motion or upon application made by a party to the proceeding, make or give 1 or more of the following orders or directions—

1. (a)
   in the case of a criminal proceeding—that the person charged or other party to the proceeding be excluded from the room in which the court is sitting or be obscured from the view of the special witness while the special witness is giving evidence or is required to appear in court for any other purpose;

2. (b)
   that, while the special witness is giving evidence, all persons other than those specified by the court be excluded from the room in which it is sitting;

3. (c)
   that the special witness give evidence in a room—

1. (i)
   other than that in which the court is sitting; and

2. (ii)
   from which all persons other than those specified by the court are excluded;

4. (d)
   that a person approved by the court be present while the special witness is giving evidence or is required to appear in court for any other purpose in order to provide emotional support to the special witness;

5. (e)
   that a videorecording of the evidence of the special witness or any portion of it be made under such conditions as are specified in the order and that the videorecorded evidence be viewed and heard in the proceeding instead of the direct testimony of the special witness;

6. (f)
   another order or direction the court considers appropriate about the giving of evidence by the special witness, including, for example, any of the following—

1. (i)
   a direction about rest breaks for the special witness;

2. (ii)
   a direction that questions for the special witness be kept simple;

3. (iii)
   a direction that questions for the special witness be limited by time;

4. (iv)
   a direction that the number of questions for a special witness on a particular issue be limited.”

24. [24]
    There is a wide discretion in the court as to how the evidence of special witnesses is to be taken.
25. [25]
    In Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3),^[7] Buchanan  J discussed the taking of video link evidence and noted the solemn atmosphere of a courtroom and the presence of  a judge as being relevant to the decision on whether video link evidence should be taken. Burns J in R v Sutton^[8] adopted these observations.
26. [26]
    Also in Sutton,^[9] Burns J noted with reference to R v O'Neill,^[10] that a trial judge needs to consider whether it is in the interests of justice to permit the evidence to be given by way of video link. Relevant matters to be considered are the nature and the scope of the evidence, whether the evidence is in contest, whether credit and reliability will be an issue, whether the link will be sufficient for the jury to assess credit, the quality of the link and the submissions made and travel and accommodation expenses need to be weighed in the equation.
27. [27]
    Also when one is concerned with s 21A of the Act, one needs to consider also the impact of giving evidence in court on victims of the crimes specified in that section.
28. [28]
    Whether there is supporting evidence is another consideration. 
29. [29]
    The term “interests of justice” was said by Martin J in R v Prisk and Harris^[11] to mean:

“The phrase “interests of justice” is not susceptible of any precise definition and that, in itself, suggests that it is a concept which is to be assessed according to the type of case, the interests of the community and the imperative requirement of a fair trial. I agree with the description of Malcolm CJ in Mickelberg that the interests of justice comprehend: the acquittal of the innocent, the conviction of the guilty, the public interest in seeing those things happen and the due administration of justice.”

Disposition

30. [30]
    Having considered all matters, I have determined that it is in the interests of justice for the evidence to be pre-recorded and the evidence to be taken by way of video link from South Korea or Sydney in the case of SEK.
31. [31]
    There are a number of reasons why I have reached that conclusion.
32. [32]
    Firstly, the alleged offences are frightening ones of a personal nature and it can readily be inferred that the complainants (particularly SEO and SEK) will have more difficulty in front of the accused and 12 strangers in giving their account. I think a video link and pre-recording the evidence will minimise the impact on each of the witnesses.
33. [33]
    Secondly, in my opinion, the courts can adequately assess the credibility and reliability of each of these witnesses via a video link. We have had pre-recorded evidence played for some years in Queensland now with juries successfully reaching conclusions on that evidence. The quality of the links now is far better than it used to be. I am satisfied, also having observed the link, that measures have been put in place for credibility and reliability to be adequately assessed.
34. [34]
    Thirdly these offences occurred quite some time ago now (in excess of two years ago). It is uncertain when restrictions on international travel will be removed. It may be for some quite some time before the restrictions are lifted. In those circumstances, there could be considerable delay before the witnesses are able to give their account of events. Justice delayed is justice denied. It is important for their account of events to be examined and cross-examined upon as soon as possible. I note that SK intends to move to the UK and SEK is now in Sydney. There are travel restrictions in place for both locations.
35. [35]
    Fourthly, in light of the cross admissibility issues, the evidence on Count 41 and the video recording, it cannot be said there is no supporting evidence for the complainants’ accounts.
36. [36]
    In all of the circumstances, it is my opinion it is in the interests of justice to make the orders sought by the crown.

Conclusion

37. [37]
    For the reasons given, I make the following orders:

1. That SEO, SK and SEK give their evidence at the trial of DL by video link.
2. That the evidence of SEO, SK and SEK be taken and digitally recorded at a date and time to be advised.
3. That the original digital recording of the evidence of SEO, SK and SEK be forwarded to and retained in the safe custody by the principal Registrar at Brisbane until the trial of this matter or further order.
4. That the video recorded evidence of SEO, SK and SEK be viewed and heard at the trial of DL instead of direct testimony.