R v Kge - [2014] QDC 308

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kge

Details

AGLC: R v Kge [2014] QDC 308
Case: [2014] QDC 308
Decision Date: 3 October 2014

CaseChat Overview and Summary

The case of R v Kge involved the defendant being charged with several serious offences, including sexual assault. The complainant in this case was seeking to be declared a special witness under the Evidence Act 1977 (Q). The matter was heard in the Magistrates Court of Queensland.

The primary legal issue before the court was whether the complainant qualified as a special witness, which would allow her to give evidence via closed-circuit television (CCTV) or a similar medium, instead of in person. The court needed to consider the nature of the relationship between the complainant and the defendant, the emotional impact of testifying in person, and any other relevant factors stipulated under section 21A of the Evidence Act 1977 (Q).

The court found that the complainant was indeed a special witness. The reasoning was based on the close relationship between the complainant and the defendant, the complainant's expressed fear and distress at the prospect of testifying in person, and the nature of the offences, which involved sexual assault. The court referred to previous cases such as R v Goldman, R v Kim, R v Strawhorn, and R v Wilkie to support its decision. The court concluded that the complainant's emotional and psychological well-being would be severely impacted by testifying in person, thereby justifying the declaration of the complainant as a special witness.

The court made an order declaring the complainant a special witness under section 21A of the Evidence Act 1977 (Q), allowing her to give her evidence via CCTV. The parties were permitted to consult on a draft order in accordance with the court’s reasons.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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