R v Skey

Case [2020] QDC 27

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Skey [2020] QDC 27

PARTIES:

THE QUEEN
(applicant)

v

SEAN THOMAS SKEY
(defendant/respondent)

FILE NO:

306/19

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

Orders made on 21 February 2020
Reasons delivered on 9 March 2020

DELIVERED AT:

Maroochydore

HEARING DATE:

21 February 2020

JUDGE:

Cash QC DCJ

ORDERS:

1. When the evidence of [the complainant] is taken she will be in a room separate to the court room, and from which all persons other than essential persons as that term is defined in section 21A of the Evidence Act 1977 (Qld) are excluded (pursuant to section 21A(2)(c)); and

2. When the evidence of [the complainant] is taken, a support person approved by the court will be present in order to provide emotional support to [the complainant] pursuant to section 21A(2)(d) of the Evidence Act 1977 (Qld).

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – MISCELLANEOUS MATTERS – EVIDENCE BY CLOSED-CIRCUIT TELEVISION – where defendant charged and convicted of one count of choking – where prior to the trial the Crown made an application for a special witness declaration and measures, namely to give evidence via video-link or closed-circuit television – where the complainant would be uncomfortable giving evidence in the presence of the defendant – where there is common law principle that a defendant be able to confront their accuser – whether the measures would detract from the ability of the jury to assess the credit of the complainant – whether special witness measures would unfairly prejudice the defendant

Evidence Act 1977 (Qld), s 21A

R v Davis [2008] 1 AC 1128
R v Wilkie (2005) 193 FLR 291

COUNSEL:

G J Cummings for the applicant
M W C Harrison for defendant/respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the applicant
Lawler Magill for the defendant/respondent

Introduction

  1. The defendant, Sean Thomas Skey, was charged on an indictment with an allegation that he choked his domestic partner without her consent, contrary to section 315A of the Criminal Code (Qld). The trial proceeded over three days commencing 2 March 2020. The defendant was convicted and sentenced to imprisonment. On 21 February 2020, a little more than a week before the trial, I heard an application made by the prosecution for orders to permit the complainant to give evidence over video-link, for her to be supported by another person when she testified, and to have her evidence recorded before the commencement of the trial. The application was largely opposed by the defendant.

  2. After hearing submissions I made orders permitting the complainant to testify at the trial over video-link and with a support person. I declined to order that her evidence be recorded before the trial. These are my reasons for making those orders.

    Statutory framework

  3. The basis for the prosecution application was section 21A of the Evidence Act 1977 (Qld). So far as is relevant the section provides:

    21A Evidence of special witnesses

    (1)     In this section—

    …
    "special witness" means—

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Details
AGLC
R v Skey [2020] QDC 27
Case
[2020] QDC 27
Decision Date

CaseChat Overview and Summary

In the case of R v Skey, the defendant was charged with the offence of choking. The Crown applied for special measures to be put in place for the complainant to give evidence in the trial, specifically to give evidence via closed-circuit television (CCTV) due to the complainant's discomfort with giving evidence in the presence of the defendant. The primary legal issue was whether the special measures would unfairly prejudice the defendant by preventing them from confronting their accuser in accordance with the common law principle. The court was also required to determine whether these measures would unduly detract from the ability of the jury to assess the credit of the complainant.

The court found that the common law principle of confronting one's accuser had not been entirely displaced by section 21A of the Evidence Act 1977 (Qld). It was held that the common law principle has not been legislated out of existence and the starting point must be that the normal procedures will apply unless there is some reason or justification for departing from those procedures. The court further held that the measures proposed by the Crown did not automatically need to be adopted for any special witness. The court concluded that the proposed measures for the complainant to give evidence via CCTV and having a support person present were reasonable and did not unfairly prejudice the defendant. The court also found that these measures would not unduly detract from the ability of the jury to assess the credit of the complainant.

The court ordered that when the complainant gave evidence, she would be in a separate room from the court room and from which all persons other than essential persons as defined in section 21A of the Evidence Act 1977 (Qld) would be excluded. The court also ordered that a support person approved by the court would be present in order to provide emotional support to the complainant.

Orders

Orders of the court

1. When the evidence of [the complainant] is taken she will be in a room separate to the court room, and from which all persons other than essential persons as that term is defined in section 21A of the Evidence Act 1977 (Qld) are excluded (pursuant to section 21A(2)(c)); and

2. When the evidence of [the complainant] is taken, a support person approved by the court will be present in order to provide emotional support to [the complainant] pursuant to section 21A(2)(d) of the Evidence Act 1977 (Qld).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The basis for the prosecution application was section 21A of the Evidence Act 1977 (Qld). So far as is relevant the section provides:21A Evidence of special witnesses(1) In this section—…"special witness" means—(a) a child under 16 years; or(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; or(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; or…(d) a person—(i) against whom domestic violence has been or is alleged to have been committed by another person; and(ii) who is to give evidence about the commission of an offence by the other person;…(2) Where a special witness is to give or is giving evidence in any proceeding, the court may, of its own motion or upon application made by a party to the proceeding, make or give 1 or more of the following orders or directions—(a) in the case of a criminal proceeding—that the person charged or other party to the proceeding be excluded from the room in which the court is sitting or be obscured from the view of the special witness while the special witness is giving evidence or is required to appear in court for any other purpose;(b) that, while the special witness is giving evidence, all persons other than those specified by the court be excluded from the room in which it is sitting;(c) that the special witness give evidence in a room—(i) other than that in which the court is sitting; and(ii) from which all persons other than those specified by the court are excluded;(d) that a person approved by the court be present while the special witness is giving evidence or is required to appear in court for any other purpose in order to provide emotional support to the special witness;(e) that a videorecording of the evidence of the special witness or any portion of it be made under such conditions as are specified in the order and that the videorecorded evidence be viewed and heard in the proceeding instead of the direct testimony of the special witness;(f) another order or direction the court considers appropriate about the giving of evidence by the special witness, including, for example, any of the following—(i) a direction about rest breaks for the special witness;(ii) a direction that questions for the special witness be kept simple;(iii) a direction that questions for the special witness be limited by time;(iv) a direction that the number of questions for a special witness on a particular issue be limited.The prosecutor’s submissions The prosecutor submitted that in deciding whether or not to record the complainant’s evidence in advance of the trial, “the only issue is whether the trial to follow is likely to be adequately fair to both the prosecution and the defence.” That is, it is unnecessary to consider what the usual procedures of the court for receiving evidence are, and whether there is a reason or justification for departing from these procedures. In support of this argument the prosecutor referred to the legislative history of section 21A and to a number of cases said to illustrate the modification of established procedures to ensure the fairness of a trial.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Thus, it was submitted, the shrinking relevance of “the usual rules and practices of the court” in determining who might be a special witness has resulted in the sole test being whether the proposed method for receiving evidence would produce an unfair trial. Under the legislation as originally framed it might be thought three steps were required: Is the witness a special witness? Is there a reason or justification to depart from usual procedure? Would departing from usual procedure produce unfairness? Instead, the prosecutor proposed only two questions need be considered: Is the witness a special witness? And would the proposed order or direction produce unfairness?Consideration In my view there are at least two reasons why the prosecution submissions cannot be accepted. The first is that the long established principle of the common law that the defendant in a criminal trial should be confronted by their accusers in order to challenge their evidence has not been entirely displaced by section 21A. The second is that there is nothing in section 21A which compels the conclusion that any of the measures permitted by section 21A(2) are to be adopted automatically for any special witness. It was not in dispute that the common law recognises a principle, which is sometimes called a right, to confront one’s accuser. A helpful discussion of the principle can be found in R v Davis [2008] Crim LR 915; [2008] 1 AC 1128; [2008] 3 WLR 125 (at [5] to [7]). The prominence of the principle waned and waxed, such as during and immediately after the Inquisition and Court of Star Chamber. Like so many rules of evidence and procedure, the principle crystallised in the late 18th and early 19th centuries. It has never been thought that the principle granted to the defendant an inviolable right to personally confront and ask questions of their accuser. This has been the case even in the United States where the principle was constitutionally enshrined by the Sixth Amendment in 1791. There has been considerable legislative activity in recent times that might be thought to encroach on the original principle. Apart from Division 4A of the Evidence Act there are provisions that may permit a witness to give evidence under a pseudonym[1] or prohibit a defendant from directly questioning a particular class of witness.[2] Other provisions to similar effect can be found, but none of the legislative intervention has gone so far as to deny a defendant the opportunity to confront and question their accuser by some means. It follows that the common law principle has not been legislated out of existence, either directly or by implication. If it had, there would be no work for section 21A to do. If there was no presumption that a defendant is entitled to confront and question their accuser, it would be unnecessary to resort to section 21A to authorise a procedure that departs from this principle. The starting point must be that the normal procedures will apply unless there some reason or justification for departing from those procedures.[1]Evidence Act 1977 (Qld), Division 5.[2]Evidence Act 1977 (Qld), Division 6.