The Queen v Gordon

[2014] QDC 197

[2014] QDC 197

DISTRICT COURT OF QUEENSLAND

CRIMINAL JURISDICTION

JUDGE R S JONES

Indictment No 1652 of 2013

THE QUEEN

v.

ALAN DAMIEN GORDON

BRISBANE

10.26 AM, WEDNESDAY, 10 SEPTEMBER 2014

EX TEMPORE PRE-TRIAL RULING

HIS HONOUR: I am concerned here with an application brought by the Crown seeking orders pursuant to section 39R of the Evidence Act and in particular seeking orders that a particular witness be able to give evidence by way of video link from Toowoomba. The application concerns a trial set which is set down to commence in Brisbane this coming Monday. It is therefore desirable that this matter be dealt with as expeditiously as possible.

The Crown relies on various medical reports in support of its application.  Essentially, the medical reports speak of two specific matters relevant to this application:  first, and in my view, the more important being reference to what are described as anxiety and panic attacks, and the second, back injuries suffered as a consequence of an assault, as I understand it, by the witnesses ex-husband. 

The first of the reports is dated the 6^th of March 2014 by one Dr Daniel Rouhead, R-o-u-h-e-a-d.  Dr Rouhead reports that on the 6^th of March 2014, or at least thereabouts, the woman involved here, one Courtney Kuhlewein, was suffering from severe acute anxiety and panic attacks which were then precipitated by grief of the recent death of her grandmother, the funeral having occurred in March 2014.  At that time, it was Dr Rouhead’s opinion that this woman would have been incapable of giving evidence, even by way of video link.  That was because, in the doctor’s opinion, she would have been unable to listen to questions carefully and give concise and responsive answers. 

Following that report, Dr Rouhead prepared another document dated 2 April 2014.  On this occasion, reference was made by the doctor to the fact that this woman was still suffering from acute anxiety and panic attacks, and that these attacks could be brought on simply as a consequence of normal day-to-day activities, including driving a motor vehicle and waiting in a doctor’s waiting room. 

The doctor reported that her anxiety is made acutely worse by contact with people, and particularly to what is referred to as “the defendant in this matter”.  There appears to be at least some level of debate about whether the so-called defendant mentioned in this letter is, in fact, the defendant in this proceeding, or whether it might have been a reference to her husband, who, as I said, perpetrated an assault on her on an earlier occasion.  In any event, I do not think this matter turns on that distinction, because the doctor here refers more broadly to contact with people generally, and one could well readily imagine that, essentially, her anxiety might well be exacerbated by presence in court, but I will come back to that in a moment.

In this document of 2 April 2014, Dr Rouhead expresses the opinion that, whilst this woman would be unable to listen to questions carefully and give responsive, clear, and concise answers in open court, she would be able to give evidence via a video link or telephone link.  There is no suggestion that she would be appearing by telephone link.

There is then a letter from a Dr Wainwright dated 3 July 2014.  This letter refers to a whiplash injury of the neck and back, secondary pain, as a consequence of the assault

inflicted on her on 7 June 2014.  Dr Wainwright reports that at that time, the woman would have been incapable or at least unfit to drive outside of the Toowoomba boundaries between 3 July 2014 and 31 July 2014 inclusive.  Those dates have, of course, passed. 

Then, on 4 September 2014, Dr Wainwright again reports.  This time, Dr Wainwright, consistent with some earlier observations of Dr Rouhead, observes that Ms Kuhlewein experiences moderate to severe anxiety at times, and that this was provoked by contact with her ex-husband and other individuals who had threatened to harm her in regard to the current case.  It seems to me that, regardless of whether there is any potential confusion in respect of the earlier correspondence about whether the defendant referred to there was her husband, that issue really pales largely into insignificance.  It appears tolerably clear that this woman would suffer genuine anxiety, which, of course, she already suffers from, but which would be exacerbated by having any direct contact with any persons involved in this case.  Her concerns seem to go beyond just her husband.

Reference is also made by Dr Wainwright at that time about difficulties in travelling.  I must say that I do not find that particular matter particularly persuasive.  As Mr Ryan pointed out, there would be other means of having this woman made available in the presence of the courtroom;  however, it would seem reasonable to infer that, whilst being able to be driven to the courtroom, the mere fact of having to travel from Toowoomba to Brisbane may be inclined to exacerbate her sense of anxiety. 

The final document is one dated 9 September 2014, again by Dr Wainwright.  Again, Dr Wainwright refers to the fact that Ms Kuhlewein suffers from generalised anxiety disorder with intermittent panic attacks, and that symptoms of panic attacks include shortness of breath, palpitations, tightness in the chest, and sense of impending doom.  Dr Wainwright also notes that these panic attacks can be brought on by various triggering circumstances.  Reference is made to having to travel beyond Brisbane, but it would appear that, at least to me, the more serious exacerbating circumstance would be having to appear in this courtroom in the presence of persons about whom she has some concerns.

As Mr Ryan correctly pointed out, if this woman’s concerns are about her ex-husband that could be readily dealt with by having the ex-husband called on a different day or at least a different time to this woman in circumstances where the two never crossed paths.

However, that, of course, would not be the case with the defendant.  But Mr Ryan quite candidly and quite properly, in my view, stated that he could not point to any specific prejudice.  But, nonetheless, correctly pointed out that the general process involved in a criminal case – and this is a particularly serious case against the defendant involving one count of maintaining a sexual relationship with a child and two counts of rape.  That there is the risk that the case or the fairness of the trial may be jeopardised in the sense that the jury would not have the ability to see firsthand, the witness giving evidence from the witness box, and, therefore, their ability to assess her credit and reliability might be jeopardised.

I should also observe for the sake of completeness that the complainant in this case is a 14 year old child who was giving evidence by a video link, and so is her brother, who is of a similar age and still at school.  If this witness were permitted to give trial by video link that would mean three significant witnesses would be giving evidence by that means.

And whilst this woman may not be the most important witness in the trial she is a witness of genuine significance. She is both a preliminary complaint witness but also a witness who, as I understand it, would be able to speak more generally about the complainant. And one assumes her various behaviour patterns as she was the carer of the complainant child. However, I must say that, on balance, I consider that the material, as limited as it is before me, favours the granting of the orders sought by the Crown. It is not uncommon for witnesses to give evidence by way of video link. And also, naturally, the Evidence Act, in fact, envisages evidence being given in that way in appropriate circumstances.

It seems to me that if this witness were required to appear in court there would be a real risk that she would be unable to give cogent and probative evidence, that is, she would be incapable of giving sufficient attention to questions and, perhaps, also incapable of giving appropriate responsive answers. 

It is for these reasons that the relief sought is granted. I will simply order that pursuant to section 39R of the Evidence Act 1977 I order that the witness, Courtney Kuhlewein, give her evidence by way of video link facilities in respect of the trial commencing in this matter on Monday 15 September 2014.

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