R v GWR[2024] QDCPR 8

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 9 June 2021 a twenty-five-Count indictment was presented in the District Court at Kingaroy. A general overview is that the allegations are as to sexually related offending, including a number of instances of sexual assault and in one instance rape, alleged to have been committed against some 11 female complainants between April 2013 and October 2018. That indictment has had a substantial history before the Court. This includes that on 12 November 2021 an order was made staying the proceedings on Counts 5 to 10 and 15 to 25, pending the conduct of committal proceedings in respect of those ex officio indictments.

2. [2]
   That remained the position until 16 February 2023 when the indictment was then transferred to the District Court at Maroochydore for pretrial management there. Since then, on 5 July 2023 the prosecution entered nolle prosequi on Counts 8 and 24 and on 1 September 2023 there was a ruling, made upon a pre-trial application for severance, that there be a separate trial of Counts 11 to 14 (being the allegations in respect of the complainant HRC).

3. [3]
   It is the prosecution election that the trial in respect of Counts 11 to 14 be the first trial to occur in respect of this indictment, at Kingaroy. The prosecution now applies for audio visual links to be utilised for the taking of the evidence of some particular witnesses at this trial, including that of the complainant. On 9 February 2024 a hearing was conducted in relation to two such applications each respectively filed on 18 January 2024:

   1. for orders that three witnesses to be called by the prosecution to give evidence as to the preliminary complaints of the complainant, by way of audio visual link from an external location pursuant to s 39R of the Evidence Act 1977 (“the Evidence Act”) and respectively from New York in the United States of America, Victoria, Australia and London, United Kingdom; and
   2. that the complainant give evidence pursuant to special witness measures pursuant to s 21A of the Evidence Act, being that:

   1. she give evidence from a room other than in which the Court is sitting and from which all persons other than those specified by the Court are excluded, pursuant to s 21A(2)(c)(i) and (ii) of the evidence in respect of two such applications as respectively filed;

2. whilst she is giving evidence all persons other than those specified by the Court be excluded from the Courtroom, pursuant to s 21A(2)(b);
3. that a person approved by the Court be present whilst the complainant is giving evidence in order to provide emotional support to her, pursuant to s 21A(2)(d);
4. that the defendant be obscured from the view of the complainant whilst she is giving evidence, pursuant to s 21A(2)(a); and
5. that a videorecording of the complainant’s evidence given during the trial be made and at any future trial the videorecorded evidence be viewed and heard in the proceeding instead of the direct testimony of [the complainant], pursuant to s 21A(2)(f).

It was otherwise proposed that the complainant would give evidence from a room situated in London, United Kingdom.

4. [4]
   The defendant did not oppose the adoption of the measures sought pursuant to s 21A but did oppose the complainant being permitted to give evidence from anywhere other than in a separate room in the precincts of the Court.^[1] Whilst there is no specific opposition to any of these measures and therefore acceptance of the power of the Court to make all such orders or directions, it is unnecessary in respect of the fifth order sought, to other than now order that a videorecording be made of the complainants evidence, as given at the forthcoming trial. It may be noted that s 21A(6)(b) makes any such videorecording admissible in any subsequent proceeding unless “the relevant court orders otherwise”. Accordingly, the decision as to whether it is to be allowed to be so used on a later occasion is a matter for the Court which comes to deal with any such subsequent proceeding and it is not an appropriate order to be made now.

Applicable Principles

5. [5]
   Although the application in respect of the complainant’s evidence was, as noted, initially made only pursuant to s 21A, it was initially accepted that the principles recognised as applicable to an application for an order made under s 39R, as engaged in respect of allowing the other witnesses to give evidence by an audio visual link from a location outside of Queensland, would also be applicable to the extra territorial aspect of the application as it related to the complainant. Eventually that position was overtaken by the unopposed grant of leave to file a further amended application made pursuant to both s 21A and s 39R of the Evidence Act, in respect of the complainant’s evidence.

6. [6]
   That occurred in the context of reference to my earlier decision in R v Payne,^[2] where s 21A and s 39R were applied in a complimentary fashion to a similarly circumstanced application.

7. [7]
   Such an approach is necessarily to be understood in the context of the provisions of Part 3A of the Evidence Act and notwithstanding that s 21A(2)(c) is expressed broadly enough as to potentially permit an audio visual link to be established to a separate room anywhere in the world. In s 39A the purpose of Part 3A, apart from noting that it is to provide for the participation of Queensland in a substantially uniform interstate scheme for taking and receiving evidence and submissions in respect of participating states, is further stated to be:

“To facilitate the giving and receiving of evidence, and the making and receiving of submissions, in Queensland Court proceedings, by audio visual link or audio link.”

It is also to be noted that s 39B provides that:

“39B Application of pt 3A

1. This part applies to a proceeding whether commenced before or after the commencement of this part.
2. This part does not limit any law of the State that makes provision for—

1. the use of audio visual links or audio links; or

2. the taking of evidence, or the making of submissions, in or outside the State for the purpose of a proceeding in the State.

3. In particular, this part does not affect a prohibition under another Act on the making of an order about the use of an audio visual link or audio link without the consent of all parties to a proceeding.
4. This part does not authorise a defendant in a criminal proceeding before a Queensland court to appear before, or give evidence or make a submission to the court by audio visual link or audio link unless expressly authorised by any of the following—

1. the Criminal Code, section 597C(4);
2. the District Court of Queensland Act 1967, section 110C;
3. the Justices Act 1886, section 178C;
4. the Penalties and Sentences Act 1992, section 15A;
5. the Supreme Court of Queensland Act 1991, section 80;
6. the Youth Justice Act 1992, section 53 or 159.”

Some of the provisions referred to in subsection (4) are accompanied by provisions to similar and complementary effect to subsection (2).^[3] The other provisions are accompanied by provisions expressed to have effect to extend the courtroom to the place where there is permitted appearance by electronic means.^[4] Whilst there are no provisions, to either effect, accompanying s 21A, it can be noted that s 21AK of the Evidence Act, which mandates the videorecording of the evidence of an “affected child witness” and allows for that by use of audio visual link, contains the following provisions:

“(4) The provisions of part 3A relating to the use of an audio visual link in criminal proceedings apply for, and are not limited by, subsection (3).

….

6. If the taking and videorecording of the child’s evidence is done at a place that is not a courtroom, the place is taken to be a courtroom for all purposes for the preliminary hearing.

….

8. Also, it does not matter if, while the preliminary hearing is conducted, the judicial officer, counsel, parties and witnesses are at different places.

Example—

To facilitate the taking and videorecording of the affected child’s evidence, the judicial officer directs that the child give the evidence by audio visual link. The preliminary hearing is conducted while the judicial officer, counsel and defendant are in a courtroom in a particular city and the child is in a room in another city connected to the courtroom through the audio visual link.”

8. [8]
   The importance of an understanding of the complimentary effect of the provisions of the Part 3A of the Evidence Act may be particularly discerned from noting that:

1. Division 2 applies to “any proceeding, including a criminal proceeding, before a Queensland court”,^[5] and contains s 39E, which:

1. permits direction that “evidence be taken or submissions be made by audio visual link or audio link from a participating State”,^[6] and
2. otherwise, provides that:

“(2) The court may exercise in the participating State, in connection with taking evidence or receiving submissions by audio visual link or audio link, any of its powers that the court may be permitted, under the law of the participating State, to exercise in the participating State.”;

2. Division 3 is directed at providing for and facilitating the taking of evidence and receiving of submissions from persons situated in Queensland, by “recognised courts”.^[7] S 39H expressly permits recognised courts to “take evidence or receive submissions, by audio visual link or audio link, from a person in Queensland.” There are also specific provisions as to powers which may be exercised by such courts in Queensland and as to procedures which may adopted. It may be particularly noted that:

1. by s 39L, the privileges, protections and immunities usually applicable to proceedings in the Supreme Court of Queensland, are extended to participants in a proceeding before a recognised court;

2. by s 39N, a recognised court may request the assistance of an officer of a Queensland court to “attend at the external location in Queensland” and/or take required action “to facilitate the proceeding” and/or “administer an oath or affirmation”; and
3. by s 39O, an offence against Queensland law is proscribed, as contempt of the recognised court, for defined conduct in respect of the giving of evidence or taking of submission at the external location in Queensland; and

3. Division 4 is headed:

“General provisions about the use of audio visual links or audio links” and by s 39Q, it is provided that:

“(1) This division applies to any proceeding, including a criminal proceeding, before a Queensland court.

2. This division does not limit, and is not limited by, division 2, 3 or 3A.”

The operative provision is s 39R:

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

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.

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.”

This broadly expressesd power to take evidence or receive submissions from an external location is accompanied by the following specific provisions:

“39S Failure of the link

If an audio visual link or audio link fails in the proceeding, the court may adjourn the proceeding, or make another appropriate order, as if a person present at the external location were at the court location.

39T Expenses

The court may make the orders it considers just for payment of expenses incurred in connection with taking evidence or making submissions by audio visual link or audio link.

39U External location to be considered part of Queensland court location

1. An external location in the proceeding before the court is taken to be part of the court location in the proceeding for all purposes relating to a Queensland law for the administration of justice.
2. In this section—

a law for the administration of justice includes a law about any of the following—

1. compulsory attendance at court;
2. punishment for failing to attend at court;
3. the presence of a person at court;
4. evidence, including compellability to give evidence;
5. perjury, contempt, procedure, privileges, protection or immunities.

law includes any written or unwritten law, and a rule, practice or procedure of the court.

39V Witness outside Queensland—when compellable

If the external location from which a witness giving evidence by audio visual link or audio link in the proceeding is outside Queensland, the witness is compellable to give evidence only to the extent the witness—

1. would be compellable to give the evidence if present in Queensland; and
2. would be compellable to give the evidence in court proceedings under the law of the place from which the evidence is given.

39W Administration of oaths and affirmations

An oath or affirmation may be sworn for giving testimony by audio visual link or audio link—

1. over the link in a way that is as near as practicable to the way the witness could be sworn at the court location; or
2. by a person at the external location in accordance with the court’s direction.

39X Testimony from outside Australia other than on oath

1. This section applies if the external location is in a country other than Australia and an oath is not allowed under the law of the country.
2. The evidence may be given otherwise than on oath under a caution or admonition that would be accepted by a court in that country for the purpose of giving evidence in the court.
3. The probative value of the evidence given under subsection (2) is not diminished merely because the evidence is not given on oath.

3. A person giving the evidence under subsection (2) is liable to be convicted of perjury as if the evidence were given on oath.

39Y Putting documents to a person at an external location

1. If in the course of examination of a person by audio visual link or audio link it is necessary to put a document to the person, the court may permit the document to be put to the person—

1. if the document is at the court location—by sending a copy of it to the external location in any way and the copy then put to the person; or
2. if the document is at the external location—by putting it to the person and then sending it to the court location in any way.

2. A document put to a person under subsection (1) is admissible as evidence without proof that the transmitted copy is a true copy of the relevant document.”

The concept of “external location” is defined in s 39C, as follows:

“external location, for a court, means the location, external to the court location—

1. in or outside Queensland or Australia from which evidence or a submission is being, is to be, or has been taken or made by audio visual link or audio link under this part; or
2. for the application of this part under the Criminal Code, section 597C—at which an accused person is being, is to be, or has been arraigned; or

3. for the application of this part under the Youth Justice Act 1992, section 159 or the Penalties and Sentences Act 1992, section 15A—at which an offender or a child is being, is to be, or has been sentenced. And “court location” is also defined to mean “the courtroom, or other place, where the court is sitting”.

9. [9]
   Accordingly and whatever view may be available as to the power of a court to manage and control the “precincts of the court”,^[8] in relation to the courtroom or place where the court sits or is constituted,^[9] the provisions in Part 3A of the Evidence Act are clearly and particularly directed at what may be permitted to occur at and from an external location, being any location external to the place where the court sits. In practical terms, that place must necessarily be at the physical location of the judge constituting the court and where, subject to recognised exceptions (such as s 21A(2)(b) of the Evidence Act), that location may be expected to be open to the public.

10. [10]
    In these circumstances it is at least desirable, if not necessary, for there to be specific notation as to any external location from which evidence is permitted to be given and submissions permitted to be taken. And if in any doubt, the particular source of power to do so, identified.

11. [11]
    Sometimes, as has been the experience of this Court, the local laws at a particular location may preclude a witness from giving evidence by such an audio visual link, which would make an order permitting that under s 39R, inappropriate.

12. [12]
    Here, it may be accepted that Victoria is a participating state, so as to engage the application of s 39E in respect of the evidence to be given by a witness from Melbourne and that s 39R is otherwise applicable, for evidence to be taken from the United Kingdom and the United States of America; there was no contention otherwise raised.

13. [13]
    However, as will be discussed further, there remain some important pragmatic issues which arise from the relevant applicable consideration; in respect of which I will repeat my earlier summary, having regard to other decisions, of the types of consideration which may inform an exercise of discretion pursuant to s 39R and rule 53 of the Criminal Practice Rules 1999:

“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 39PR 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.”^[10]

Discussion

14. [14]
    The allegations in this matter arise in the context of the complainant’s presence in Australia, having travelled from the United Kingdom when she was about 21 years old. Her contact with the defendant came due to her seeking farm work in Australia, in order to obtain a second year visa so as to remain here. She came to Murgon after connecting with the defendant through an online platform “Gumtree”, in order to work on his farm. She provides an account that over a period of about two weeks in early February 2017 and upon her coming to live and work at the defendant’s farm, before she obtained another position and moved to Alfa near Longreach, she was plied with alcohol by the defendant and importuned to provide him with sexual favours. The specifically charged allegations are that:

• Count 11: the defendant procured the complainant to engage in prostitution by suggesting to her that she could have sex with people around town for $50 to make extra cash and that he could set that up.

• Count 12: the defendant procured the complainant to perform a sexual act upon him by a false pretence. As it is understood, that is upon the basis that she was procured, in order to maintain the arrangement for which she would be provided remuneration and board and food and alcohol, to perform oral sex on the defendant.
• Count 13: the defendant sexually assaulted the complainant, when they were travelling in a vehicle in the presence of another male worker from his farm, by exposing and then fondling her breasts.
• Count 14: the defendant raped the complainant by demanding that she perform oral sex upon him if she wanted to get her visa and not return to Melbourne with nothing.

15. [15]
    The complainant reported her allegations to police on 20 August 2018 but prior to that she made preliminary complaints to others, including the following witnesses, who are the subject of the separate application to allow their evidence to be respectively taken by audio visual link:

    1. In the case of CAI, from New York in the United States of America, she is described as a friend of the complainant, they having met when each was travelling and working in Australia. It is expected that she will give evidence that in June 2018, the complainant told her that the defendant had sexually assaulted her and that it involved oral sex.
    2. In the case of PSE, also described as a friend of the complainant after meeting her in Melbourne in late 2016, from Melbourne. It is expected that her evidence will be that around November 2017 the complainant disclosed to her that the defendant had assaulted her and made her give him oral sex or “suck his dick”.
    3. In the case of AR, from London in the United Kingdom, in particular in respect of her receipt of an email from the complainant on, 19 April 2018, which included disclosure that the defendant had touched her breasts, offered to prostitute her to others and made her give him oral sex. This occurred in the context of AR’s maintenance of a website designed to “raise awareness and prevent backpacker exploitation relating to Australian visa requirements for 88 days of farm work”.

Although the application remained opposed, the concern of the defendant was much more directed at the evidence of the complainant. It may be accepted that the evidence of each of these other witnesses would be relatively short and not substantially in contest. It may be inferred that bringing each of them to Kingaroy to give evidence would entail a substantial degree of disruption to their ongoing lives.

16. [16]
    In respect of the application relating to the complainant’s evidence, there is her uncontested evidence particularly in her affidavit filed 18 January 2024 which makes reference to her having suffered depression, anxiety, PTSD and flashbacks since the events about which she complains occurred. She refers to her evidence given by use of an audio visual link at the committal hearing as being stressful and a source of anxiety and intimidation of her. Although not reflected in any measure that is sought pursuant to s 21A for her, she deposes to concern as to the defendant being present and listening to her give evidence, as she found that distressing and distracting on the last occasion.

17. [17]
    As it has been noted for the defendant there is ultimately no opposition to these measures sought pursuant to s 21A, being adopted, including the use of an audio visual link, provided it is from a remote witness room in the courthouse. Accordingly, some particular considerations that are also addressed by the complainant are as to her life circumstances in terms of being employed as a nurse in critical care, in Newcastle in the United Kingdom, and the disruption and impact upon her of having to be absent from her work without full pay and also, in order to travel to Australia and eventually to Kingaroy to give evidence in this matter. And also in respect of her ongoing studies towards a Master’s Degree in Global and Public Health at the Newcastle University. The complainant disposes to having lectures there three days per week and exams and assignments due throughout the year. She further disposes to being concerned to disclose to others, in the context of her employment and study commitments, as to why she would need to be absent in Australia for the period involved.

18. [18]
    The situation confronting the complainant here is relevant to consideration of the overall interest of justice, in this instance. That not only includes the public or community interest in seeing these allegations determined but also such interest in seeing that the defendant is fairly and appropriately tried in respect of them. The materials before the Court including her cross-examination at the committal proceedings, indicate that her credibility will be an issue at the trial. It may also be observed that the materials placed before the Court in this instance, do not present any similar expectation of corroboration of her account as was noted in R v Payne.^[11]

19. [19]
    In earlier prepared written submissions for the defendant,^[12] reliance is placed upon observations made in R v Sutton^[13] and Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3),^[14] as to potential limitations of assessment of credit where video link technology is utilised and the potential loss of the solemnity of atmosphere in the courtroom, as an enhancement of the prospect that the witness will remain conscious of the solemnity of the occasion in his or her obligations to the court. As Buchanan J there observed, there should not be an approach which serves:

“… too lightly to deprive a cross-examiner of that traditional forensic element in the exchange although, as the cases universally make clear, the court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party.”

20. [20]
    As has been noted, the credit of the witnesses other than the complainant is not identified as being in issue. Further, this court is now very familiar with cases where the credit of critical witnesses is regularly assessed in respect of evidence given by video-link technology, as mandated by s 21AK and as regularly engaged pursuant to s 21A of the Evidence Act. In this case, ultimately the force of any countervailing considerations in respect of the complainant’s situation, dissipates, when it is understood that there is ultimately no opposition to the adoption of the measures of an audio visual link pursuant to s 21A.

21. [21]
    Accordingly, the relevantly remaining issues are pragmatic ones in relation to how it is proposed that each witness will be sworn and give evidence by way of an appropriately reliable video link, within the reasonable parameters of conducting a jury trial at Kingaroy, particularly given the time differences between here and the United Kingdom and the United States of America.

22. [22]
    Such considerations have not been the subject of particular identification or consideration in these applications. Indeed, an apparent assumption has been the saving of cost by use of those facilities personally available to the witness. That is, an underlying contemplation of the giving of evidence from locations such as the witness’ own residence. Whilst such informality of arrangement may be acceptable (subject to confirmation as to the issues of reliability of connection and ability to use the preferred platform: Pexip) in the instances of the other witnesses, it is not in the circumstances of the opposition which has been raised, acceptable in terms of achieving any appropriate sense of solemnity of occasion or in assessing a sufficiently reliable connection for what may be expected to be a more lengthy period in respect of the critical evidence of the complainant in the trial.

23. [23]
    Neither and except for an understanding that each of the witnesses will be expected to be available to give evidence at times which will be consistent with the usually expected sitting hours of a court at Kingaroy, is there any precise indication of such a plan or evidence confirming the availability of each witness to achieve it. In the case of the complainant that will necessarily involve her availability, at yet to be nominated date or dates, over at least a matter of hours commencing in the very early hours of the morning in the United Kingdom. Given the earlier observations, that should be at a facility available to provide the reliable services of an appropriate video link to the court at Kingaroy and as required, the transmission of any documents as may be required to be brought to the attention of the witness.

24. [24]
    It was an aspect of the defendant’s opposition to the complainant, in particular, giving evidence by an audio visual link, that it was expected that she may need to be cross- examined on the contents of her diary. But as has been noted s 39Y of the Evidence Act contemplates such an occurrence and the practicalities of doing so may also be accommodated with some attention to proper planning and also be facilitated by her giving evidence from a location providing for the necessary services.

25. [25]
    The confirmation of the availability of such arrangements, should not necessarily require a fixed trial listing before an application like this may be determined. But, in any event, in this instance the parties have been proceeding upon an understanding that this trial will be given the number 1 listing for the sittings commencing […] and therefore be expected to commence at [...] on […].

Conclusion

26. [26]
    Whilst in another instance the identified deficiencies in the proposal might simply lead to refusal of the application, there is the concession that the complainant would give evidence by audio visual link and the circumstances adequately support a conclusion that she be permitted to do so without the distress and disruption of having to come to Australia to do so.

27. [27]
    As has been noted, the position in respect of the other witnesses was not so much put in issue and it is to be understood that some significant disruption to each of their lives could be avoided by use of an audio visual link, in circumstances where their evidence may be relatively brief and their credibility at least not substantially in issue.

28. [28]
    Accordingly, it should be concluded that, in each instance, there be approval of the use of an audio visual link to an external location, subject to the provision of and the Court’s approval of a plan as to where, when (in the sense of the witness being available) and how each witness will do so at the defendant’s trial.

29. [29]
    Therefore, the appropriate order, at this juncture, is that:

Subject to the approval by the trial judge of a plan as to where, when (in the sense of the witness being available) and how each witness will so give evidence, at the defendant’s trial on counts 11 to 14 of Indictment 240 of 2021:

1. pursuant to s 21A and s 39R of the Evidence Act 1977, the evidence of HRC be given from a location in London, United Kingdom, by adoption of the measures that:

1. she give evidence from a remote room, by audio visual link, live at the trial of the defendant;
2. while she gives evidence, all persons other than those specified by the court, including any person approved by the court to provide emotional support for the witness, be excluded from the room in which she gives evidence;

3. that while she gives evidence all persons other those specified by the court be excluded from the room in which it is sitting; and
4. a videorecording of the evidence given by the witness be made, and that the videorecording be securely stored by the Principal Registrar until further order.

2. pursuant to s 39E of the Evidence Act 1977, the evidence of PSE be given from a location in Melbourne, Victoria.
3. pursuant to s 39R of the Evidence Act 1977, the evidence of CAI be given from a location in New York, United States of America.
4. pursuant to s 39R of the Evidence Act 1977, the evidence of AR be given from a location in London, United Kingdom.