R v Sq (No 3)
[2021] ACTSC 122
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v SQ (No 3) |
Citation: | [2021] ACTSC 122 |
Hearing Date: | 16 June 2021 |
DecisionDate: | 16 June 2021 |
Before: | Elkaim J |
Decision: | See [23] |
Catchwords: | CRIMINAL LAW – Pre-Trial Application – Application to give evidence from outside ACT – whether application is in the interests of justice – risk of unfair prejudice and unreasonable delay – application granted |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 68, 49 |
Parties: | The Queen (Crown) SQ (Accused) |
Representation: | Counsel R Christensen (Crown) S Whybrow (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Legal (Accused) | |
File Number: | SCC 217 of 2020 |
ELKAIM J:
The respondent is due to stand trial before a judge and jury on 28 June 2021. He is facing charges of sexual offences against his former wife.
On 7 June 2021 the applicant, (the Crown), filed an application in proceeding seeking orders that the complainant:
(a)be permitted to give evidence from a remote location; and
(b)she be entitled to have HC as a support person while she gives evidence; and
(c)the remote location be a place outside of the ACT.
The respondent does not oppose the complainant having HC as a support person and does not oppose her giving evidence from a remote location. He does however oppose the location being outside of the ACT.
The application is supported by an affidavit of Ms Hannah Lee affirmed on 4 June 2021. In her affidavit Ms Lee says that the complainant would like to give her evidence from the Waverley Local Court in Sydney. The reasons are that her “support person will not travel” and she has “a baby and two other children”.
Ms Lee, having spoken to the prosecutor who formally had carriage of the matter, says that HC said that he has known the complainant for 5 to 6 years, but he was unable to come to the ACT because of his “caring responsibilities”. These responsibilities were owed to his “pet dogs” and his “family friend’s child”.
The respondent pointed out that while the complainant was entitled to a support person (pursuant to s 49 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)) there was not necessarily an entitlement to any specific support person. Further, the reasons given by HC for him not coming to Canberra seem far from compelling. He also points out that there are other support services which are “routinely engaged for complainants”.
The respondent acknowledges that the complainant is bound to give evidence by an audiovisual link pursuant to s 68 of the above Act. But he says that if the audiovisual link is to Sydney “the proceedings will be unreasonably delayed and there is a substantial risk that the court will not be able to ensure that the proceedings are conducted fairly”.
He says there is a substantial risk of unfair prejudice and unreasonable delay. This is because the complainant’s evidence is crucial to the Crown case and, equally, crucial to the defence case. He says that the proper cross examination of the complainant will involve her being taken to “dozens” of documents some of which will not be identifiable until the complainant gives her evidence. Accordingly a proper and fair cross examination will be impeded by unreasonable delay as the necessary materials are sent (or transmitted) to Sydney, perhaps on many separate occasions.
The respondent points out that the complainant does not say that she does not wish to give evidence in the ACT, rather it is to suit the convenience of the support person. He notes that the trial date was set some time ago so that arrangements “could, and ought to have been, made” for the support person to be able to attend Canberra if necessary.
The respondent next pointed out that there is a view to be conducted during the case which will necessarily involve the attendance of the complainant in order to ascertain where certain events took place. Previous notice given by the Crown to the effect that a pre-recorded viewing would take place does not seem to have come to fruition.
In addition there is the possibility of the respondent making an application for a further view, and again the complainant will need to attend.
Finally, the respondent submitted that the disclosure of documents by the Crown was continuing so that the specific documents that will be brought to the attention of the complainant are yet to be finalised.
Ultimately, therefore says the respondent, it is not in the interests of justice for the orders to be made.
The applicant’s response to the above submissions was to properly acknowledge that it could be difficult to arrange for possibly an extensive amount of documents to be put before a witness in Sydney. Nevertheless, just as the Crown would need to prepare its documents to be made available to the witness, then so too could the respondent, even if that included the collection of more documents than might be required.
The respondent, in turn, said that such a course would be costly and would involve significant preparation which an accused person ought not be called upon to perform. In addition it would involve the placing of, possibly sensitive, documents into the hands of persons in Sydney who were unknown to the defence.
The final matter that I noted from discussion with the parties is that although the Waverley Local Court was available when recent inquiries were made, absent a court order, a final booking could not be made and it was not certain that the facilities remained available.
The Crown, I think somewhat optimistically, said that if Waverley Local Court was no longer available then an alternative court would probably be available.
There is no doubt that the complainant is entitled to give evidence from a remote location. This can include a place outside the ACT. There is no doubt that the complainant is entitled to have a support person with her, and there is no reason why that person should not be HC. I will make orders to that effect.
The real issue therefore is whether I should make the order that the remote location be in Sydney. The only reasons for taking this course are those advanced on behalf of HC, which I would describe as weak. I note the Crown, again properly, said that the reasons advanced by HC could not “be put any higher”.
Against this is the acknowledged difficulties, including costs, that will be encountered in either amassing the necessary documents and having them available in Sydney, or, and I think this more important, dealing with the necessity to refer the complainant to documents which become relevant in the course of cross-examination.
The question is not simply one of a balance of convenience. I think it is much closer to an unfair prejudice being imposed upon the accused. I therefore decline to order that the remote location from which the complainant is permitted to give evidence is Sydney.
As far as the view is concerned, I do not think the issues raised are relevant to the application. However, should there be any continuing controversy about the view, an application to resolve it should be made to the court.
I make the following orders:
(i)The complainant is permitted to give evidence from a remote location, provided that location is situated in the ACT and at a place convenient to the court so as to enable the provision of documents from the court to the remote location.
(ii)The complainant is entitled to have a support person with her when giving her evidence.
(iii)HC is permitted to be the support person.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: Date: 29 July 2021 |
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