R v TJF

[2011] QDC 170

DISTRICT COURT OF QUEENSLAND

CITATION:

R v TJF [2011] QDC 170

PARTIES:

The Queen

AND

TJF

Defendant

FILE NO/S:

DIVISION:

PROCEEDING:

Sentence hearing

ORIGINATING COURT:

District Court, Bundaberg

DELIVERED ON:

9 August 2011

DELIVERED AT:

Bundaberg

HEARING DATE:

9 August 2011

JUDGE:

McGill DCJ

ORDER:

Complainant may read her victim impact statement to the Court.

CATCHWORDS:

CRIMINAL LAW – Procedure – sentence – victim impact statement – whether statement may be read aloud by complainant in court – whether complainant witness

Victims of Crime Assistance Act 2009 s 15(8)

Penalties and Sentences Act 1992 s 9(6)(a)

R v Evans [2011] QCA 135 - cited.
R v Singh [2006] QCA 71 - cited.

COUNSEL:

D.J. Balic for Crown

R.J. Byrnes for the defendant

SOLICITORS:

Director of Public Prosecutions for Crown

Town agent for Legal Aid Qld for defendant

[After the defendant was arraigned, the Crown Prosecutor asked that the complainant be allowed to read her victim impact statement to the court.  Counsel for the defendant raised that the complainant was in the care of the State, and whether various statutory provisions applied. There was doubt as to whether SRB was recording.]

RULING

1. I think that even though the child is in the care of the appropriate state official, I do not think that that is particularly a problem, and that should not prevent the child from being able to provide a victim impact statement.

1. It does seem to follow from the Victims of Crime Assistance Act 2009 s 15(8) that the victim may read details of the harm aloud before the sentencing court, which could be done by reading a victim impact statement. The Penalties and Sentences Act in s 9(6)(a) provides that in sentencing an offender to whom subsection (5) applies, which would seem to be the case here, the court must have regard primarily to the effect of the offence on the child as well as the other matters referred to in subsection (6). This is commonly done by means of providing a written victim impact statement. The document is made an exhibit. It is, however, strictly speaking in that form not evidence; at least there seems to have been a distinction drawn between a victim impact statement and evidence by the Court of Appeal in R v Singh [2006] QCA 71, and indeed in R v Evans [2011] QCA 135.

1. If the complainant is not giving evidence, then the provisions of the Evidence Act do not apply and the provisions of s 5 of the Criminal Law (Sexual Offences) Act 1978 also will not apply. On the other hand, that will mean, it seems to me, that if she wants to come into court and read the statement that will have to happen in open court. Whether she wants to do it in those circumstances is a matter for her. It would really only be if a situation arose where there was some conflict or some issue about some factual matter raised in the victim impact statement, in respect of which the Crown wanted to call evidence and as a result it became necessary to take evidence from the complainant, that the various statutory provisions would apply.

1. In those circumstances, although it is an unusual course in Queensland for a victim to read a victim impact statement to the court, I think there can be no objection to it.  If the complainant wishes to do so in this case, then she can do so.  I think probably she can do so from the Bar table, so long as she is in front of a microphone (and in the circumstances my Dictaphone), or she can do so from the witness box, but if she does so from the witness box she still will not be giving evidence.  But I do not think I can close the court or exclude anybody from it just because she is reading the victim impact statement. I think that really becomes a matter for her.  If she wants to do it, she chooses to do it, she does it, but she does it with the court with the people who want to be in it.  If she wants to do it in those circumstances, then she can.

[The complainant in fact read her victim impact statement from the witness box; it was not made an exhibit.]