R v Wee - [2015] QDC 114

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Wee [2015] QDC 114

PARTIES:

THE QUEEN

v

BENJAMIN KAI WEE

FILE NO/S:

1467/14

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

8 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

5 and 7 May 2015

JUDGE:

Smith DCJA

ORDER:

I direct that the witness Mark Thomas give evidence via audio visual link from Minneapolis, Minnesota, USA at the trial of the defendant.

CATCHWORDS:

CRIMINAL LAW- MATTERS RELATED TO PROOF- WITNESSES- Whether eye witness should be called by video link

Evidence Act 1977 (Q) s39R

Criminal Practice Rules r53

BUSB v R (2011) 209 A Crim R 390

R v Goldman (2004) 148 A Crim R 40

R v Kim (1998) 104 A Crim R 233

R v Ngo (2003) 57 NSWLR 55

R v Strawhorn [2004] VSC 415

R v Sutton [2015] QSC 110

R v West [1992] 1 Qd R 227

COUNSEL:

Mr S. Bain for the Crown

Mr D. Wilson for the defence

SOLICITORS:

Director of Public Prosecutions (Q) for the crown

Russo lawyers for the defence

These are my reasons for permitting the crown to call a witness by video link from the USA at the trial of the defendant which is to commence on 11 May 2015. I made the order on 7 May 2015.

Introduction

This is an application by the Crown for a witness, Mark Thomas, to give evidence via video link. The defendant’s trial is due to start on Monday 11 May 2015. The defendant is charged with one count of assault occasioning bodily harm on Michal Zoltkowski at Fortitude Valley on 17 October 2013. The defendant was a security guard at Ric’s Bar.

The witness is presently in the United States. He entered the USA on 30 April 2015 and has a valid visa for 6 months.

Background

Mr Thomas, in his statement dated 6 November 2013, says that on 17 October 2013 with others he caught a bus to the Valley at about 9 p.m. and went to Ric’s Bar. A friend of his, Ryan Bullivant, was not allowed in. Mr Thomas then saw Mr Bullivant talking to the defendant, asking why he was not allowed in. Mr Bullivant still was not allowed in. He then wanted to speak to the manager. Mr Thomas then met up with another group including the complainant. One of the security officers then approached Mr Thomas and said, “I’m gonna fuck you up,” and yelled profanities. At this stage Mr Thomas backed away from him, and he then saw a scuffle between the defendant and Michal. The defendant pushed Michal, and Michal grabbed the defendant to stop him from falling over. The defendant then grabbed Michal by the front top of his shirt and dragged him outside the smoking area. He then grabbed Michal by the throat with his gloved hand, lifted him off his feet, and threw him to the ground. The complainant’s head hit the ground, it sounding like something hard hitting concrete.…

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 Wee

Details

AGLC: R v Wee [2015] QDC 114
Case: [2015] QDC 114
Decision Date: 8 May 2015

CaseChat Overview and Summary

The defendant was charged with serious drug offences under the Drug Misuse Act 1986. The prosecution's key witness, Mark Thomas, was based in the United States and the defendant objected to his evidence being given via video link. The matter was heard in the Supreme Court of Queensland. The primary legal issue was whether the court had the authority to order the witness to give evidence via video link under the Evidence Act 1977 and the Criminal Practice Rules. The court considered relevant case law and statutes to determine if the witness should be compelled to give evidence in this manner.

The court examined the statutory provisions and case law to ascertain the appropriate application of section 39R of the Evidence Act 1977, which provides for the use of audio visual links in certain circumstances. The court referred to previous decisions such as BUSB v R, R v Strawhorn and R v Sutton, which provided guidance on the use of audio visual links. The court also considered the Criminal Practice Rules, particularly rule 53, which deals with the direction of a witness to give evidence by video link. The court determined that it had the authority to order the witness to give evidence via video link, taking into account the need to ensure the fairness of the trial and the availability of the witness.

After considering the relevant authorities, the court found that the witness should be compelled to give evidence via video link. The court concluded that it was in the interests of justice for the witness to give evidence in this manner, as it would facilitate the efficient and fair conduct of the trial. The court emphasised the importance of ensuring that all parties had an equal opportunity to present their case and that the witness's evidence was reliable and trustworthy. The court directed that the witness give evidence via audio visual link from Minneapolis, Minnesota, USA, at the trial of the defendant.

Orders

Orders of the court

I direct that the witness Mark Thomas give evidence via audio visual link from Minneapolis, Minnesota, USA at the trial of the defendant.

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 Wee [2015] QDC 114
PARTIES:	THE QUEEN v BENJAMIN KAI WEE
FILE NO/S:	1467/14
DIVISION:	Criminal
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	8 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	5 and 7 May 2015
JUDGE:	Smith DCJA
ORDER:	I direct that the witness Mark Thomas give evidence via audio visual link from Minneapolis, Minnesota, USA at the trial of the defendant.
CATCHWORDS:	CRIMINAL LAW- MATTERS RELATED TO PROOF- WITNESSES- Whether eye witness should be called by video link Evidence Act 1977 (Q) s39R Criminal Practice Rules r53 BUSB v R (2011) 209 A Crim R 390 R v Goldman (2004) 148 A Crim R 40 R v Kim (1998) 104 A Crim R 233 R v Ngo (2003) 57 NSWLR 55 R v Strawhorn [2004] VSC 415 R v Sutton [2015] QSC 110 R v West [1992] 1 Qd R 227
COUNSEL:	Mr S. Bain for the Crown Mr D. Wilson for the defence
SOLICITORS:	Director of Public Prosecutions (Q) for the crown Russo lawyers for the defence