R v The Queen

[2015] NZHC 813

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

NOTE: PREVIOUS ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011

REMAINS IN PLACE.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-044-2080 [2015] NZHC 813

THE QUEEN

v

R

Hearing:	22 April 2015
Appearances:	Mr Raftery & Mr Walker for Crown Mr Wilkinson-Smith & Mr Brosnahan for defendant
Judgment:	23 April 2015

JUDGMENT OF WINKELMANN J [mode of evidence application]

This judgment was delivered by me on 23 April 2015 at 3.30 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

R v R mode of evidence [2015] NZHC 813 [23 April 2015]

[1]      The defendant is to stand trial on Tuesday 28 April 2015 on charges of

murder and sexual violation.  The Crown’s case is that on the evening of 24 May

2014 the defendant abducted Mrs Blesilda Gotingco from Salisbury Road, Birkdale, took her against her will to his home, sexually violated her and subjected her to physical violence which resulted in her death.  The Crown says that in order to effect the abduction the defendant drove his car into Mrs Gotingco when she was on the footpath or grass verge in Salisbury Road.

[2]      The Crown witness F is to be called to give evidence which is relevant to the abduction phase of the alleged offending.  The Crown has applied for an order under ss 103 and 105 of the Evidence Act 2006 that F give her evidence in chief via a evidential video (recorded on 26 May 2014) and that she be cross-examined through the use of closed circuit television.   F was 10 years old when she gave her video interview to the Police and will be 11 years old when she gives evidence at the trial.

[3]      Her evidence will be that around the time the Crown alleges the defendant struck Mrs Gotingco with the motor vehicle, F was helping her cousin with cooking the evening meal.  She was standing in the kitchen of a house near the point of the alleged abduction.   She heard a woman screaming, which she described as high pitched.  She said it then stopped.  She said she heard a motor car, but the engine was not turned off, and then she heard the car drive off.

[4]      The Crown says that the witness is vulnerable in light of her youth and the experience of giving evidence in a homicide trial is likely to be stressful and traumatic.   She will likely be intimidated should she be called upon to give her evidence in the usual way, particularly in light of the seriousness of the subject matter of the trial.  Stress and intimidation may undermine her ability to give clear and accurate evidence.  If the witness is able to give her evidence via her evidential video interview and be cross-examined through closed circuit television, this will reduce the intimidation from having to look at the defendant while giving evidence, and more generally from being present in the courtroom.  This will in turn help her give the best available evidence to the jury.

[5]      The Crown says that there is no basis for arguing that the mode of evidence will unfairly disadvantage the defendant.

[6]      The defendant has previously raised in opposition to the application that during the course of the evidential video, although the witness promises to tell the truth she is not asked as to her understanding of truth, lies and promises.  At the hearing of the application the defendant has not advanced any further submissions in opposition to the application.  He continues to oppose the application.

[7]      I am satisfied that grounds for the making of the order are made out.  The witness is vulnerable by reason of her age.  She will very likely be intimidated by the experience of giving evidence in court, and in the presence of the defendant.  From the  transcript  of  the  interview  it  appears  that  the  interview  complies  with  the Evidence  Regulations  2007  as  they relate  to  video  record  evidence  in  criminal proceedings.  While the defence is correct that there is no part in the interview where the witness’ understanding of truth, lies and promises is explored, that issue can be dealt with by Crown counsel at the conclusion of evidence-in-chief.  The proposed mode of evidence preserves the defendant’s ability to test the witness’s evidence through cross-examination.   There is therefore no prejudice to the defendant from adopting this mode of taking F’s evidence.

[8]      For these reasons I am satisfied that the order in the form sought should be made.  Evidence in chief is to be provided by way of the evidential video interview taken   in   2014,   together   with   supplementary   questions   to   clarify   Ms   F’s understanding of truth, lies and promises, and the relationship of that understanding to the account she gives in the video interview.   This supplementary evidence in chief, cross-examination and any re-examination are all to be conducted through closed circuit television in accordance with any directions of the trial Judge.

Suppression

[9]      There are existing name suppression orders in relation to this proceeding. They remain in place.   There is to be no publication of the defendant’s name in relation to these proceedings.

[10]     The content of this judgment addresses the evidence to be admitted at trial.  I therefore make a further order prohibiting publication of any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of the trial.   This order is necessary to protect the defendant’s fair trial rights.

Winkelmann J