R v Lindsay
[2019] ACTSC 387
•26 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lindsay |
Citation: | [2019] ACTSC 387 |
Hearing Date: | 23 August 2019 |
DecisionDate: | 26 August 2019 |
Before: | Burns J |
Decision: | See [7], [15] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-Trial Application – whether witnesses can give evidence prior to the trial of the accused – where witnesses not Australian citizens and not known how long they will be in Australia – whether in the interest of justice – consideration of r 6813 Court Procedure Rules 2006 (ACT) |
Legislation Cited: | Court Procedure Act 2004 (ACT), s 76 Court Procedure Rules 2006 (ACT), rr 6813, 6822, 6828 |
Parties: | The Queen (The Crown/The Applicant) Timothy Lawson Lindsay (The Accused/ The Respondent) |
Representation: | Counsel ACT Director of Public Prosecutions (The Crown/The Applicant) Legal Aid ACT (The Accused/ The Respondent) |
| Solicitors S Beaumont (The Crown/The Applicant) J Campbell (The Accused/ The Respondent) | |
File Number: | SCC 134 of 2019 |
BURNS J:
In this matter the respondent, Timothy Lindsay, is awaiting trial on a charge of sexual intercourse without consent. By an application dated 19 August 2019, the applicant Crown seeks orders that the witnesses SD and NF:
· be examined prior to trial, on 2 September 2019, by a judicial officer;
· the witnesses be examined, cross-examined and re-examined, as if at trial;
· that the evidence given by the witnesses, at the examination, be recorded by audio-visual recording; and,
· that such audio-visual recording be admissible in evidence at any trial of the accused.
I raised with the parties on Friday, 23 August 2019, when this matter came before me, the question whether the Court was seized with jurisdiction over the matter, such as to be able to hear the pre-trial application. I am satisfied that the Court has jurisdiction to hear the application. Section 76 of the Court Procedures Act 2004 (ACT) provides jurisdiction and I am thankful to counsel for the respondent for having provided written submissions to that effect to my chambers.
This Court also has power to make the orders sought by the applicant.
Rule 6813 of the Court Procedures Rules 2006 (ACT) (the Rules) allows me to make an order for the examination of a witness prior to trial and also prescribes the ways in which the examination may proceed. However, I am only permitted to make such an order if I am satisfied that it is in the interests of justice to make the
order: r 6813(2), the Rules.
I note that r 6822 provides for the recording of evidence given at any such examination and r 6828 provides for the admissibility of the recording at the accused’s trial.
Consideration
SD
I will now turn to the two witnesses. The witness, SD, gives evidence, or is capable of giving evidence, of a matter which is not in contest. He is a temporary visa holder, and his visa is expected to expire in October 2019. He is currently, I am told, making inquiries about extending his stay, but whether he will be successful, if he chooses to pursue that path, cannot be presently known. He is normally a resident of Nice, in France, but has no fixed place of abode in that country. I therefore accept that it may be difficult to locate SD if he leaves Australia.
With relation to SD, I am satisfied that he can give material evidence with respect to the trial of the accused. I am satisfied that there is no prejudice to the accused in the evidence of SD being taken at a pre-trial examination.
I am therefore satisfied that it is in the interests of justice to make the order sought by the Crown in relation to SD.
NF
I now turn to the second witness, NF. This witness is in a different category to SD. He is able to give evidence of complaint by the complainant, shortly after the alleged offence. This is likely to be evidence of much greater significance at the trial of the accused than the evidence of NF.
Understandably, counsel for the accused is concerned that the accused’s case may be prejudiced if the witness gives evidence before the complainant gives her evidence.
NF is apparently in Australia on a temporary visa and is currently applying for a further visa to stay in Australia for a further period of four years. He plans to travel to Fiji between 8 November and 27 November 2019. I presume he then intends returning to Australia until he travels to the United Kingdom, in March or April 2020. The material before me does not indicate how long he intends to remain in the United Kingdom, but it does indicate that he intends to return to Australia after travelling to the
United Kingdom.
I note that no trial date has been set yet, with respect to the accused’s trial.
There are certain risks for the Crown, I accept, in not making the order which is sought. There is a risk that NF will not return to Australia after travelling either to Fiji or to the United Kingdom. However, this is speculation at the present time. There is insufficient information before me to assess the likelihood of this risk eventuating.
The second risk is that NF may not be able to be contacted in the United Kingdom if he does not return to Australia. This is also somewhat speculative, and the material does not suggest that the same potential difficulties in contacting him exist, as with SD.
On the other hand, I accept that there is potential prejudice to the accused if the application is granted, with regard to NF. It may well be that a further application, providing more definite information about the situation of NF, would result in a different result.
At that present time, I am not satisfied that it is in the interests of justice to make the order sought in relation to NF.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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