R v Passau - [2016] QDC 294

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Passau [2016] QDC 294

PARTIES:

THE QUEEN

(applicant)

v

PASSAU, Dooley Lee

(respondent/defendant)

FILE NO:

226 of 2015

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

6 October 2016 (orders)

18 November 2016 (reasons)

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

6 October 2016

JUDGE:

Long SC DCJ

ORDER:

1. Direct that the evidence of Christopher Van Rees be taken by audio visual link from Santiago, Chile to this Court on 29 November 2016 at 9:00am; and

2. In respect of the application for Nicholas Steven Aquin, that application is adjourned to a date to be fixed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WITNESSES – POWERS OF A JUDGE – OTHER MATTERS – Where an application was made pursuant to s 39R of the Evidence Act 1977, for the taking of evidence, of both the complainant and a witness, by way of audio visual link, at the defendant’s trial – Where the witness is not an Australian citizen and resides in Santiago, Chile – Where personal attendance would involve a significant cost to the community – Where personal attendance would require a Criminal Justice Visa – Where and in contrast, the complainant resides in Australia but may be called to work in Canada on short notice – Where the complainant has been subpoenaed to give evidence at the defendant’s trial – Where there is an absence of evidence that he will be unable to honour that obligation – Whether it is in the interests of justice to allow either application

LEGISLATION:

Evidence Act 1977, ss 39PR and 39R
Criminal Practice Rules 1999, r 53

CASES:

R v O’Neill [2009] QCA 210
R v Sutton [2015] QSC 110

COUNSEL:

M Gawrych for the applicant

D Crews for the respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the applicant

Bosscher Lawyers for the respondent

By an application filed on 28 September 2016, the prosecution sought orders permitting the taking of the evidence of the witnesses Christopher Van Rees and Nicholas Steven Aquin (the complainant), by audio visual link at the defendant’s trial.[1]
[1]Originally, the application in relation to the witness Van Rees was for evidence to be taken by audio link but and pursuant to leave granted on the hearing of the application, the applicant was permitted an amendment to take the application to be read as including an application for evidence to be taken by way of an audio visual link.

The defendant trial is listed as the number one trial in the week commencing 28 November 2016. It is expected to commence on 28 November 2016 and extend for two or three days. That trial will be in respect of a charge of attempted armed robbery on 3 April 2014, charged by indictment presented on 20 July 2015.[2]
[2]It may be noted that the matter had been previously listed as a number three trial in the week commencing 18 July 2016 but was de-listed when it…

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 Passau

Details

AGLC: R v Passau [2016] QDC 294
Case: [2016] QDC 294
Decision Date: 6 October 2016 (orders) 18 November 2016 (reasons)

CaseChat Overview and Summary

In the matter of R v Passau, the defendant faced charges in the Supreme Court of Queensland. The dispute centred on the admissibility of evidence from two witnesses, Christopher Van Rees and Nicholas Steven Aquin, under the provisions of section 39R of the Evidence Act 1977. The defendant sought to have the evidence of these witnesses taken via audio-visual link due to the significant logistical and financial challenges associated with their personal attendance at the trial.

The legal issues before the court were whether the applications to have the evidence of both witnesses taken via audio-visual link were in the interests of justice. Specifically, the court had to consider the significant cost to the community and the need for a Criminal Justice Visa for the Chilean witness, juxtaposed against the potential unavailability of the Australian complainant due to work obligations in Canada. The court needed to balance these factors to determine the best course of action.

The court found that the application regarding Christopher Van Rees was in the interests of justice because of the substantial cost and logistical difficulties associated with his personal attendance from Santiago, Chile. The court noted that the witness did not have Australian citizenship, adding to the complexity of his potential attendance. On the other hand, the application regarding Nicholas Steven Aquin was adjourned, as the court found insufficient evidence to suggest that the complainant would be unable to attend.

The orders made by the court were that the evidence of Christopher Van Rees be taken via audio-visual link from Santiago, Chile on 29 November 2016 at 9:00am. The application concerning Nicholas Steven Aquin was postponed to a date to be determined later.

Orders

Orders of the court

1. Direct that the evidence of Christopher Van Rees be taken by audio visual link from Santiago, Chile to this Court on 29 November 2016 at 9:00am; and

2. In respect of the application for Nicholas Steven Aquin, that application is adjourned to a date to be fixed.

Background

Background to the litigation

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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 Passau [2016] QDC 294
PARTIES:	THE QUEEN (applicant) v PASSAU, Dooley Lee (respondent/defendant)
FILE NO:	226 of 2015
DIVISION:	Criminal
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	6 October 2016 (orders) 18 November 2016 (reasons)
DELIVERED AT:	District Court at Maroochydore
HEARING DATE:	6 October 2016
JUDGE:	Long SC DCJ
ORDER:	1. Direct that the evidence of Christopher Van Rees be taken by audio visual link from Santiago, Chile to this Court on 29 November 2016 at 9:00am; and 2. In respect of the application for Nicholas Steven Aquin, that application is adjourned to a date to be fixed.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – WITNESSES – POWERS OF A JUDGE – OTHER MATTERS – Where an application was made pursuant to s 39R of the Evidence Act 1977, for the taking of evidence, of both the complainant and a witness, by way of audio visual link, at the defendant’s trial – Where the witness is not an Australian citizen and resides in Santiago, Chile – Where personal attendance would involve a significant cost to the community – Where personal attendance would require a Criminal Justice Visa – Where and in contrast, the complainant resides in Australia but may be called to work in Canada on short notice – Where the complainant has been subpoenaed to give evidence at the defendant’s trial – Where there is an absence of evidence that he will be unable to honour that obligation – Whether it is in the interests of justice to allow either application
LEGISLATION:	Evidence Act 1977, ss 39PR and 39R Criminal Practice Rules 1999, r 53
CASES:	R v O’Neill [2009] QCA 210 R v Sutton [2015] QSC 110
COUNSEL:	M Gawrych for the applicant D Crews for the respondent
SOLICITORS:	Office of the Director of Public Prosecutions for the applicant Bosscher Lawyers for the respondent