The State of Western Australia v Dale

[2015] WASC 151

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DALE [2015] WASC 151

CORAM:   HALL J

HEARD:   16 APRIL 2015

DELIVERED          :   29 APRIL 2015

FILE NO/S:   INS 350 of 2014

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

DANIEL JUSTIN DALE
Defence

Catchwords:

Criminal law - Application for special witness order - Section 106R Evidence Act 1906 (WA)

Legislation:

Evidence Act 1906 (WA), s 106R

Result:

Application granted

Category:    B

Representation:

Counsel:

Prosecution                   :     Mr B Standish

Defence:     Mr D J A Hockton

Solicitors:

Prosecution                   :     Director of Public Prosecutions (WA)

Defence:     Angus Hockton

Case(s) referred to in judgment(s):

Nil

1. HALL J:  The accused, Daniel Justin Dale, stands charged on an indictment with offences of aggravated burglary, stealing a motor vehicle and arson.  He has pleaded guilty to the charges of aggravated burglary and stealing a motor vehicle and not guilty to the arson charge.  The arson charge is set down for a trial commencing on 1 September 2015.

The special witness application

1. The State has filed an application seeking that one of the prosecution witnesses be declared a special witness pursuant to s 106R of the Evidence Act 1906 (WA). That application is opposed by the accused. The parties have each filed written submissions in respect of the application.

2. In support of its application the State has also filed a statement from Ms Dianne Dullard, a senior social worker with the Victim Support Service, dated 5 February 2015.  Ms Dullard interviewed the prosecution witness concerned, Ms Alison Wilson, and has provided an account of what Ms Wilson told her.

3. At a status conference on 16 April 2015 the parties agreed that they were content for the application to be determined on the papers.  Neither party sought to adduce any further evidence on the application, nor did they seek to make oral submissions.  Both parties were content to rely upon their written submissions.  Counsel for the accused confirmed that there was no objection to the court receiving the statement of Ms Dullard in evidence, though the truthfulness of all of the statements made to her by Ms Wilson were not accepted.  The parts of the statement to which the accused takes issue are identified in the written submissions and will be referred to later in this ruling.

4. Section 106R(1) of the Evidence Act provides that a judge may make an order declaring that a person who is to give evidence in any proceedings in that court is a special witness and directing that arrangements be made for the giving of that evidence and for any incidental or related matters. The grounds on which an order may be made are set out in s 106R(3) which provides:

   The grounds on which an order may be made are that if the person is not treated as a special witness he or she would, in the court’s opinion -

   (a)by reason of physical disability or mental impairment, be unlikely to be able to give evidence, or to give evidence satisfactorily; or

   (b)be likely -

   (i)to suffer severe emotional trauma; or

   (ii)to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily,

   by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject‑matter of the evidence, or any other factor that the court considers relevant.

5. Where a person is declared to be a special witness s 106R(4) sets out the arrangements that can be made. That subsection provides as follows:

   The arrangements that may be made under this section are -

   (a)that the person have near to him or her a person, approved by the court, who may provide him or her with support;

   (b)that the person have a communicator while he or she is giving evidence;

   (c)in any proceeding for an offence, that an arrangement of the kind described in section 106N(2) or (4) is to be made.

6. Section 106N(2) and (4) provide for arrangements for evidence to be given by video link from a remote room or for use of screens, one‑way glass and similar devices.

7. The State applies for the following orders:

   1.Alison Rose Wilson be declared a special witness.

   2.Alison Rose Wilson give her evidence outside the courtroom but within the court precincts and the evidence be transmitted to the courtroom by means of a video link.

   3.While giving her evidence Alison Rose Wilson have near to her a person, approved by the court, who may provide them with support.

   4.Any further orders the court considers necessary.

The prosecution case

1. The prosecution case is that at about 5.00 pm on Thursday, 6 March 2014 the accused arrived unannounced at the home of Ms Wilson in Heathridge.  The accused and Ms Wilson had formerly been in a relationship.  The accused arrived at the house with a friend, Andrew Baird.

2. Ms Wilson permitted the accused to enter the house on the assumption that it was safe to do so because he was in company with Mr Baird.  However, Mr Baird left the premises at about 5.30 pm, promising to return sometime later.  Soon after this Ms Wilson told the accused that he had to leave also.  At this time it is alleged that the accused made threats of violence to Ms Wilson.  He refused to leave and began behaving erratically, shouting, crying, yelling and hitting himself on the head.  Eventually Ms Wilson decided to call a taxi for the accused and said that she would wait outside with him until it arrived.  He agreed to wait for the taxi but told Ms Wilson that he did not need her to wait with him.  When the taxi arrived the accused was nowhere to be seen.

3. At about 8.30 pm the same evening the accused re‑attended at Ms Wilson's house.  He kicked the front door and demanded to be let in.  He said he intended to bash Ms Wilson.  She armed herself with a stick, opened the front door and then ran out past the accused to the next door neighbour's house. 

4. The accused entered Ms Wilson's house and stole an Apple iPhone 4 belonging to her.  He then went to the bedroom where he stole car keys and jewellery.  He then walked out of the house and used the car keys to steal Ms Wilson's car, a Holden Barina that was parked outside. 

5. At about 9.45 pm on the same evening the accused abandoned the Holden Barina in West Leederville.  It is alleged that he then set fire to the vehicle and walked to his nearby home.  Whilst walking away from the scene he discarded one of the stolen items of jewellery.

Statement of Dianne Dullard

1. Ms Dullard is a senior social worker employed by the Victim Support Service (VSS).  She states that Ms Wilson contacted the VSS on 23 January 2015 seeking assistance to write a victim impact statement.  On the basis of the telephone conversation and previous information obtained by VSS, Ms Dullard asked Ms Wilson to attend an appointment for a special witness assessment.

2. Ms Dullard met with Ms Wilson on 4 January 2014.  She states that Ms Wilson presented as 'highly anxious and emotionally labile'.  During the meeting Ms Wilson was 'frequently tearful and at times was physically shaking and her breathing was shallow and rapid'.

3. Ms Wilson told Ms Dullard that she had been diagnosed with Post Traumatic Stress Disorder in April 2014.  She said that she also suffers from depression and panic attacks.  She said that she had been unfit for work since November 2014 and is currently in the process of being registered to receive a disability pension.

4. During the interview Ms Wilson reported a 'significant history of trauma including witnessing the war in Zimbabwe and being the victim of domestic violence in a number of relationships'.  She said that she met the accused at a neighbour's party in 2011 and that they had a brief sexual relationship.  Thereafter Ms Wilson said that the accused would arrive at her house unexpectedly at any time and would bang on the door until she let him in.  She said that she and the accused had used drugs together. 

5. Ms Wilson reported that the accused had made many unwanted telephone calls and text messages to her.  She said that the accused would make threats and indicated that he had connections with 'bikies'.  She said that she had changed her telephone number five times to avoid contact from the accused.

6. In December 2012 Ms Wilson said that she had rented out her house and gone to live in Queensland in order to escape from the accused and to improve her financial situation.  She reported that in Queensland she was the victim of serious emotional and physical abuse at the hands of another person which caused her to flee that State and return to Western Australia.  During her time in Queensland and after her return to Western Australia she continued to receive unwanted and frightening text messages from the accused.  She told Ms Dullard that she was 'terrified' of the accused.

7. Ms Wilson reported that she is very fearful of the accused and believes she is at risk of serious harm.  She has made efforts to make her home secure and avoids leaving her house.  This has caused her to become very socially isolated.  She continues to experience sleeping difficulties, intrusive thoughts and hyper‑vigilance. 

8. As at the date of the report, 5 February 2015, Ms Wilson had not had contact with the accused since 6 March 2014.  She reported that she did not wish to see the accused again.  She said that 'if she sees him in open court, she will not be able to control her crying and that it is likely she will have a panic attack.  During such an attack, she would experience a feeling of dread, pains in her chest, shaking, sweating and feeling nausea'.  She said that she believed her 'mind would go blank' and she would not be able to focus on the questions she was being asked.  She told Ms Dullard that when she is highly anxious she experiences memory loss, inability to concentrate and loses track of what people are saying.  She spoke about her words tumbling out and that she would be 'jabbering'. 

9. Ms Dullard states that, in view of Ms Wilson's fear of the accused, her PTSD, panic attacks and possible re‑traumatisation should she see the accused, it is her opinion that Ms Wilson would be unable to give her best evidence in open court.

10. Annexed to Ms Dullard's statement is a summary of her professional background.  Ms Dullard has a Degree in Applied Science (Social Work) obtained in 1975 and has worked as a social worker since that time.  She has provided assessment, investigation, case management, counselling and treatment services to child and adult victims of family violence in statutory government agencies in Perth, Sydney and Melbourne.  She has provided parent education, assessment, counselling and support services for the Department of Community Development.  For approximately 12 months she worked as a Child Witness Preparation Officer at the Child Witness Service before transferring to the VSS where she has been employed for the past 15 years.  In her present role she provides assessment, critical incident debriefing, trauma counselling, witness preparation and support during the trial process to victims of crime.  She also provides case management services to secondary victims of homicide and vulnerable complainants.

11. In written submissions on behalf of the accused it is stated that the accused takes issue with the following matters contained in Ms Dullard's statement:

    (1)that until 6 March 2014 (the date of the offences) there had been phone calls and text messages between the accused and Ms Wilson in roughly equal proportion;

    (2)that the accused has never been given Ms Wilson's contact details by anyone other than her and 'if she had genuinely wished no contact with him she need not have provided that contact number to him';

    (3)Ms Wilson contacted the accused in the days immediately before 6 March 2014 and wished to have contact with him;

    (4)the accused is not a member of a motor cycle gang and does not know anyone who is and has never indicated to the witness that he knows any such gang members; and

    (5)that since the incident the witness has made contact with the father of the accused apologising for 'the occurrence of the situation'.

12. I note that a number of these matters are not so much objections to the contents of Ms Dullard's statements as positive assertions made on behalf of the accused that are not supported by any evidence.  Given that the accused declined my invitation to call any evidence in respect of the application it is not possible to give these assertions any weight.  However, I will treat the submissions as being objections to the evidence of Ms Dullard as being evidence of the truth of the allegations made to her by Ms Wilson.  It would appear that the accused, in particular, disputes that he made threatening or harassing telephone calls or text messages to Ms Wilson.

Conclusions

1. It is important to take into account that the accused has pleaded guilty to two of the charges against him.  By pleading guilty to aggravated burglary and to stealing Ms Wilson's car he has admitted the essential elements of those offences.  There is, therefore, an undisputed basis that she has been the victim of offences of which he was the perpetrator.  That factual background supports the existence of a justifiable fear of the accused on the part of Ms Wilson. 

2. Whilst some of the specific allegations reported by Ms Wilson to Ms Dullard are disputed, Ms Dullard's observations and her expertise are not.  These observations include that Ms Wilson was highly anxious and emotionally labile.  Ms Dullard observed Ms Wilson to be frequently tearful, that she was shaking and that her breathing was shallow and rapid during the interview.  These observations support a conclusion that Ms Wilson would be likely to suffer severe emotional trauma if not treated as a special witness.  It is also likely that she will be so intimidated or distressed if not treated as a special witness as to be unable to give evidence or to give evidence unsatisfactorily.

3. In these circumstances I am satisfied that the grounds for making an order under s 106R(1) have been established. Accordingly there will be orders in terms of the State's application.