R v W HC Auckland Cri-2007-092-13782

[2008] NZHC 1824

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-092-013782

THE QUEEN

v

W

Hearing:         19 November 2008

Appearances: Ms K Gray for Crown

Ms E Te Whata for Accused

Judgment:      21 November 2008 at 10 am

JUDGMENT OF LANG J

[on application for directions under ss 103 and 105 Evidence Act 2006]

This judgment was delivered by me on 21 November 2008 at 10 am, pursuant to

Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Crown Solicitor, Auckland
Counsel:

Ms E Te Whata, Manukau City

R V W HC AK CRI-2007-092-013782  21 November 2008

[1]      Mr W   faces 12 charges laid under the Crimes Act 1961.     They all relate to incidents which are alleged to have occurred in which he has assaulted his former partner and her children.     He is also charged with failing to provide the necessaries of life to his partner’s four-week old baby so that her health was permanently injured.   The trial is due to commence on Monday 24 November 2008.

[2]      The  Crown  has  now  applied  for  directions  under  s  103  and  105  of  the Evidence Act 2006 (“the Act”) in relation to the mode by which Mr W  ’s former partner is to give her evidence at trial.    The Crown seeks an order that she give her evidence in circumstances where the accused is concealed from her line of vision by a screen.

[3]      The  application  is  opposed  by  the  accused.       He  contends  that  the complainant should give her evidence in open Court in the usual way and that screens are not necessary.

Jurisdiction

[4]      Section 103(1) of the Act provides that a Judge may direct that a witness gives evidence in the ordinary way or in an alternative way as provided in s 105. Section 103(3) sets out the grounds on which a Judge may make a direction that a witness is to give evidence in an alternative way.   It provides as follows:

(3)      A direction under subsection (1) that a witness is to give evidence in an alternative way, may be made on the grounds of—

(a)      the age or maturity of the witness:

(b)the   physical,   intellectual,   psychological,   or   psychiatric impairment of the witness:

(c)      the trauma suffered by the witness: (d)     the witness's fear of intimidation:

(e)      the linguistic or cultural background or religious beliefs of the witness:

(f)       the nature of the proceeding:

(g)      the nature of the evidence that the witness is expected to give:

(h)the   relationship   of   the   witness   to   any   party   to   the proceeding:

(i)       the  absence  or  likely  absence  of  the  witness  from  New

Zealand:

(j)       any other ground likely to promote the purpose of the Act.

[5]      In giving directions under s 103(1) the Judge is required by s 103(4) to have regard to the following matters:

(a)      the need to ensure—

(i)  the fairness of the proceeding; and

(ii) in a criminal proceeding, that there is a fair trial; and

(b)      the views of the witness and—

(i)  the need to minimise the stress on the witness; and

(ii) in a criminal proceeding, the need to promote the recovery of a complainant from the alleged offence; and

(c)      any other factor that is relevant to the just determination of the proceeding.

Grounds for application

[6]      In the present case the Crown relies on s 103(3)(b), (c), (f), (g) and (h).    It contends that the complainant has already suffered actual trauma herself at the hands of the accused, and that that trauma has been increased by the knowledge of what the accused has done to her children.     The Crown submits that this has resulted in psychological damage to the witness to such an extent that she now fairly falls within the description of a person who has been in a battering relationship.   Despite continuing   assaults,   however,   she   remained   living   with   the   accused   for   a considerable period and was reluctant to cease contact with him.

[7]      The Crown also points to the fact that the witness will be giving evidence about the actions of her former partner and that those actions will inevitably bring back extremely painful memories for her.     The Crown observes that screens were used when the witness gave evidence at the depositions hearing, and that she is unequivocal in her view that she wishes screens to be used again at the trial.

[8]      In those circumstances the Crown submits that the Court is required to have regard to the views of the witness and also to the need to minimise the stress on her when she gives her evidence.   In addition, it says that the Court must have regard to the need to promote the recovery of the witness from the trauma of the alleged offending.

Grounds of opposition

[9]      Counsel for the accused points to various passages from the depositions in which the witness confirms that there were positive aspects to her relationship with the accused, and in which she concedes that she had a degree of control within the relationship.   In those circumstances, and given the fact that the witness is a mature woman of 25 years of age, counsel for the accused submits that she ought to be able to give evidence in the ordinary way and without the need to resort to screens.

Decision

[10]     Although the witness is 25 years of age there can be no doubt that the nature of the events that she will be required to describe at trial means that the trial process will be extremely stressful for her.   She will be required to describe assaults not only upon herself but also upon her children.   These are alleged to have continued over a lengthy period between February and August 2007.     The fact that she will be describing the actions of her former partner is also of relevance.

[11]     I also draw considerable assistance from Dr Raethel, a psychologist who will be giving evidence at trial.   She has a detailed knowledge of the factual background to the charges that the accused faces.   She has also interviewed the former partner of the accused on four occasions spanning a total of approximately eight hours.   As a result, the psychologist has this to say:

… Ms Boroevich is still highly influenced by her feelings for Mr W  . It is likely that she will be strongly affected by his presence in court whilst she is giving evidence.     This influence could be lessened by the use of screens to obstruct her view of Mr W  .

…

The situation for Ms Boroevich has been highly stressful since the arrest of Mr W  , the removal of her children, repeated interviews by police, the injuries to Amethyst and the introduction in depositions of material dealing with the recent death of her baby son.   She is already highly stressed by all of these events.   She is distressed at the prospect of further proceedings and any measure to reduce such stress would be of benefit to her as a witness and increase the likelihood of coherent, effective evidence.

[12]     Dr Raethel concludes as follows:

I have considered all the methods of giving evidence from the traditional method of giving evidence in an open court room to the alternative ways of giving evidence as set out in section 105 of the Evidence Act 2006.   It is my opinion that the experience of giving evidence in an open court would place undue stress upon the witness and the sight of her partner in the court has the potential to be an unsettling influence upon her and upon the nature of her evidence.

For the above reasons it is recommended that screen be deployed in the upcoming trial of Steven W   to shield him from the view of the witness so that she can give her evidence in a manner which overcomes these concerns to some extent.

[13]     I have reached the clear view that the wishes of the complainant in this matter should be respected.    Those wishes are supported to a considerable degree by the evidence from Dr Raethel.    The Court is required to ensure that the stress on the witness in a case such as this is minimised, and that regard is paid to the need to promote her recovery.   I accept the evidence of Dr Raethel that the use of screens is the most appropriate method in the present context of minimising the stress on the witness and promoting her recovery.   The need to ensure that the accused receives a fair trial can be met in the usual way by the trial Judge giving appropriate directions to the jury just before the witness is called to give her evidence.

[14]     For these reasons I make a direction under s 105(1)(a)(i) of the Act that the witness is to give evidence whilst in the courtroom but unable to see the accused. A screen is to be used to achieve that objective.

Lang J