R v Kge
[2014] QDC 308
•3 October 2014
DISTRICT COURT OF QUEENSLAND
CITATION:
R v KGE [2014] QDC 308
PARTIES:
THE QUEEN
v
KGE
FILE NO/S:
184/2012
DIVISION:
Criminal
PROCEEDING:
Trial
ORIGINATING COURT:
Rockhampton
DELIVERED ON:
3 October 2014
DELIVERED AT:
Brisbane
HEARING DATE:
17 and 26 September 2014
JUDGE:
Smith DCJ
ORDER:
1. The court’s opinion is the complainant is a special witness under s21A of the Evidence Act 1977 (Q).
2. I will permit the parties to consult as to a draft order in accordance with these reasons.
CATCHWORDS:
CRIMINAL LAW- EVIDENCE- whether complainant should be declared a special witness
Evidence Act 1977 (Q) s 21A
R v Goldman (2004) 148 A Crim R 40
R v Kim (1998) 104 A Crim R 233
R v Strawhorn [2004] VSC 415
R v Wilkie (2005) 193 FLR 291
COUNSEL:
Mr. D. Jones for the crown
Mr. R. Lo Monaco for the Defendant
SOLICITORS:
Office of the Director of Public Prosecutions Qld for the crown
Madden Solicitors for the defence
Introduction
The prosecution has applied for an order that the complainant KE be declared a special witness pursuant to s 21A(1) of the Evidence Act 1977 (Q). It is proposed that her evidence be taken by video-link from Victoria.
The evidence
The depositions have been marked as Exhibit 1. The alleged offence is one of rape which occurred on 19 November 2011 at Rockhampton.
The complainant was born on 23 October 1985 and presently is 28 years old.
The complainant in her statement dated 20 November 2011 says she has suffered from anxiety for years and has problems with her memory due to panic attacks. She also has problems remembering where she has been. On 18 November 2011 at about 6 p.m. she walked to a friend’s place. They had some drinks and then caught a taxi to the Lakes Creek Hotel, where there was karaoke. They had some more drinks there and her friend introduced her to the defendant. The complainant says she was not that drunk. Later, the complainant said she was tired and wanted to go home, and the defendant offered her a lift. They entered his car but drove past her street, and the defendant drove to a bush area and turned off the headlights and the ignition, and said, “I think you know what’s going to happen now.” She opened the passenger door and ran up the hill, but he ran after her. She did not get very far. She felt his hand grab her around her lower face and chin area, and her head was pulled back. He threatened to use a knife. He told her to take her pants off. She screamed out for help, but he told her to stop this. He pulled down her pants with both of his hands and pushed against her shoulders so that she fell onto the ground. He then raped her, after this he drove off. She was able to put on some clothing and saw a house with a light on and knocked on the door. She told the man to call an ambulance, she had just been raped, and Triple O was called.
Mr Dang, who lives in Rockhampton, states that at 1.40 a.m. on 19 November 2011 he heard some knocking on the front door and saw the complainant. She asked for an ambulance to be called and said words to the effect, “I have a problem outside with my boyfriend.”
A registered nurse, examined the complainant at 4.15 a.m. on 19 November 2011 at the Rockhampton Emergency Department. There were a number of injuries noted to her, including: four scratches to the right breast area, three scratches to the left breast area, five scratches to the left shoulder blade area, a group of further scratches to the left shoulder blade area, small scratch abrasions to the right shoulder blade area, small scratches between the shoulder blades, a diagonal red-coloured abrasion to the right leg thigh, three small scratch abrasions to the right leg, mid-inner thigh, a group of scratch abrasions to the left mid-inner thigh proximal to the groin area, seven small abrasions to the right knee, a few small abrasions to the lower back area, a bruise on the left ring finger, and small pieces of grass on the mons pubis and labia majora.
There is preliminary complaint evidence from a friend of the complainant. There is a statement from another associate in which he says that the defendant sent a friend a text which read, “She was all keen for it but then flipped out.” (See [18])
There is a DNA analysis which shows that the defendant’s DNA was in vaginal swabs taken from the complainant.
The defendant was interviewed on 19 November 2011. He confirmed that he gave the complainant a lift to go home. On the way driving towards Dean Street, he alleges that the complainant told him to stop somewhere (T19.51). He asked why, and she said, “You know why” (T20.11). They started kissing in the back of the car. It was a bit cramped, and they went out onto the grass and started having sex, but then she started going weird (T20.30). She started saying, “Stop, stop, stop” and “Get off me, get off me” (T21.50). He then told her that she could walk home, and he got back into the car. She started screaming out “rape”, and he said he was not going to stick around and left (T22.1).
There is also a Triple O call dated 19 November 2011 at 2.41 a.m. in which the complainant alleges she had been raped.
Exhibit 2 is a report from a psychiatrist dated 11 September 2013. In this report he alleges that the complainant has been diagnosed with a panic disorder with agoraphobia and alcohol dependence syndrome. She has been suffering from these symptoms for about three to three and a-half years and has been drinking excessively to cope with such symptoms. He states:
“In my opinion travelling to Rockhampton from Melbourne and giving evidence at court is likely to escalate her mental health issues. She would be re-traumatised with that situation. I think it’s a better plan for her to do videoconferencing from Melbourne to give evidence if that is an option for her.”
In a further report (Exhibit 3) dated 15 September 2014, the doctor states that the complainant still experiences panic disorder symptoms and drinking alcohol to mask it. She had been to a detox unit earlier in the year and had detoxified from alcohol but continued her drinking again. There had been mood fluctuations in the past few months. She was prescribed Epilim and Sertraline.
“[She] is not in a state of mind to be able to handle questions related to the sexual assault without experiencing an increase in extreme anxiety and mood symptoms. I do not think [she] could present herself psychiatrically well enough to be able to process the questions properly to answer them appropriately …. The court process could bring back memories of sexual assault and make her experience the trauma again. This could make her mental state worse. She experiences post-traumatic symptoms and anything related to the trauma could make her experience post-traumatic symptoms.”
The doctor gave evidence before the Court on 17 September 2014. In evidence, he said he had seen the complainant on 22 February 2013 for the first time and at least 10 times there was a gap between October 2013 and August 2014. He diagnosed her with panic disorder with agoraphobia and alcohol dependence:
“At this stage I haven’t made a diagnosis of bipolar affective disorder because she continues to drink alcohol and there hasn’t been a period of time when she’s been completely off alcohol.” (T1-12.35)
She has continued to drink alcohol on a daily basis now (T1-13.1). He thought there was definitely a risk she would be affected by alcohol when giving evidence (T1‑13.11).
She had stopped taking her medications the previous week (T1-13.46).
The doctor did not think that if she continued to drink she would be able to give reliable evidence (T1-14.30). The doctor said he was seeing her the following week. He thought that any form of evidence would have some effect on her mental state (T1‑16.10).
Exhibit 4 is a file note of a discussion between the Prosecutor and the doctor on 25 September 2014. The doctor had seen the complainant, and she was now taking her medication, in a more stable and better mental state. She had also cut back on her alcohol, and he could see the improvement. The complainant wants the trial to continue so it can be finished. He thought she would be anxious about giving video evidence but did not think she would be able to travel to Rockhampton to give evidence in person. He could give her medication for anxiety on the day. He intends to have more appointments with her leading up to the trial.
The complainant has given a statement dated 13 September 2014. She says in the statement she has been seeing a psychologist and psychiatrist for anxiety, depression and panic attacks weekly. She needs the support of her mother. She says:
“Whilst making this statement the thought of having to be in the same courtroom as [the defendant] makes me extremely fearful and anxious. Whilst making this statement I was physically sick several times. If I was required to travel to Rockhampton to give evidence I would be greatly disadvantaged as I would not be able to continue with my current treatment. I would not be able to enjoy the support of my mother and other family members and I would not be able to articulate my thought sensibly due to my current condition. I do not believe I could overcome my fear enough to be able to understand questions and answer them intelligently. If I were required to travel back to Rockhampton to give evidence in person I believe it would be detrimental to my health and mental wellbeing. Returning to Rockhampton even without the prospect of giving evidence seems much too overwhelming.”
Detective Trevor Rendon has also provided a statement dated 13 September 2014. He says that during the taking of the statement the complainant shook uncontrollably and found it difficult to express herself. She vomited violently intermittently during the statement.
“I have been a policeman in excess of 10 years. I have taken hundreds of statements and dealt with dozens of sexual abuse victims. I have never seen a witness so fearful and physically affected.”
Mr Rendon also gave evidence before me on 17 September 2014. He confirmed that which was stated in the statement. He said in evidence (T1-9.15) that she hyperventilated, her breathing was erratic, her hand shook uncontrollably and she would vomit. It appeared to be a genuine response on her part. It did not seem that she was dramatic or a “drama queen”.
The Section
Section 21A(1) of the Evidence Act (Q) permits the Court to direct that a “special witness” give evidence in a number of forms including by way of video-link. The term “special witness” is defined in s 21A(1) as inter alia:
“(b) a person who, in the court's opinion—
(i) would, as a result of a mental, intellectual or physical impairment or a relevant matter, be likely to be disadvantaged as a witness; or
(ii) would be likely to suffer severe emotional trauma;
(iii)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”
Submissions
The Crown submits in this case that s 21A(1)(b)(ii) and (iii) are relevant to this application.
The Crown submits that:
(a) there is no real disadvantage for a jury to judge the demeanour of the witness by video-link;
(b) the fact the accused cannot personally confront the witness is not sufficient reason to refuse the application (see R v Wilkie (2005) 193 FLR 291);
(c) the necessary public scrutiny may still occur with video-link (Kim (1998) 104 A Crim R 233 at 234-236);
(d) the complainant is now in Victoria, and the psychiatric evidence is such that the section has been fulfilled;
(e) in all of the circumstances, the most appropriate option is for the complainant to give her evidence by way of video-link.
In further written submissions the crown submits:
(a) The geographical location where the trauma happened is going to significantly impact on the complainant (see T1-16.1-3).
(b) Video evidence would allow the jury to properly observe the demeanour of the complainant.
(c) This is not just a “word on word” case.
(d) The section is fulfilled.
The defendant’s position is that he is not able to consent to the order sought by the Crown. The defence points out the matter is best described as a case of “word against word” and credibility is of paramount importance. The usual rule is that witnesses give evidence in open court. It is conceded that the application stands to be determined on the evidence of the psychiatrist.
Determination
In Kim (supra) it was held by Coldrey J that the “necessary public scrutiny” can occur by video link and that demeanour can be adequately assessed. I agree for a number of years now courts in Queensland have had a system of prerecording the evidence of affected children and it is the experience of the courts that demeanour can be adequately assessed.
In R v Strawhorn [2004] VSC 415 Coldrey J held at [3] that “For example the right to confront one’s accuser in the courtroom is not an immutable right as the very existence of the video-link evidence makes clear. A balancing exercise must be undertaken in which the rights of the accused, particularly to a fair trial, must be balanced against public interest considerations which point to the desirability of utilising the video-link technique.”
I note that Redlich J in R v Goldman (2004) 148 A Crim R 40 at [18] noted that even if video link evidence has the same qualities as evidence given in court, the right of a party to confront those who testify against them and to do so in the presence of the tribunal of fact should be given great weight.
There is no doubt that the usual rule is that an accuser should give his or her evidence in open court in front of the accused. This is particularly true in a case of rape that involves issues of consent. Having said that, the legislature has seen fit to enact s 21A as it recognises that in some cases a person cannot give an adequate account of events because of their mental state or disadvantage.
I have weighed these matters in the balance in determining this application. In the result, I am persuaded on the evidence that if the complainant was required to travel to Queensland and further give evidence in open court, she would be disadvantaged as a witness. She would be likely to suffer a severe emotional trauma, and would likely to be intimidated so as to be disadvantaged as a witness if required to give evidence in the usual fashion.
In those circumstances, I consider it appropriate that she give evidence via video-link from Victoria. However, this is on conditions. It concerns me that she might be in a state where she is affected by alcohol or is in a state such that she cannot give reliable evidence. In those circumstances, the condition will be that she be examined by her doctor immediately prior to and during the course of her evidence to ensure that she is in a state to give reliable evidence.
Indeed the fact her treating doctor will be present in Victoria and not in Queensland is also a relevant factor I have taken into account.
In the circumstances, my orders are:
1. The court’s opinion is the complainant is a special witness under s21A of the Evidence Act 1977 (Q).
2. The parties are to consult as to a draft order in accordance with these reasons.
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