R v Yates

[2012] NZHC 2655

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT 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:  PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED UNDER SECTION 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2011-029-1403 [2012] NZHC 2655

THE QUEEN

v

MICHAEL REECE YATES

Hearing:         11 October 2012

Counsel:         C Anderson for Crown

C Muston for Accused

Judgment:      11 October 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Whangarei
Counsel:

C Muston, Whangarei

R V YATES HC WHA CRI 2011-029-1403 [11 October 2012]

[1]      The Crown Solicitor applies for a mode of evidence order under s 103(1) of

the Evidence Act 2006 (the Act).  It is made in the context of an indictment charging Mr Yates with 11 counts, involving injuring with intent to injure, injuring with intent to cause grievous bodily harm, assault with intent to injure, sexual violation by unlawful sexual connection and kidnapping.

[2]      All of the charges relate to a woman who is now 35 years old.  In the draft summary of facts and in a report prepared for the purpose of the mode of evidence application, it appears that the complainant can properly be described as both “vulnerable” and lacking “the social development of her calendar years”.

[3]      The application was made on various  grounds, including intellectual  and psychological impairment,1  trauma suffered by the complainant,2  a fear of intimidation,3 the nature of the proceeding (including two allegations of sexual violation)4 and the nature of the evidence she is expected to give.5

[4]      In accordance with s 104(b) of the Act, a report has been obtained from Dr Yvette Ahmad, a clinical psychologist.   She has interviewed the complainant and others involved with the events with knowledge of the complainant.  My reading of that  report   confirms  the  Crown   contentions  of  likely  impairment,   potential immaturity (in the sense of the impressionistic style of speech said to have been used) and the trauma suffered by her as a result of the alleged offending.  It is also clear that she fears intimidation from the accused and is severely distressed at the possibility of giving evidence in open Court.

[5]      Having considered Dr Ahmad’s report, Mr Muston, for Mr Yates, does not oppose the application.  The intention is that she give evidence in chief through a video record taken when she initially made her complaint, with cross-examination

and re-examination being conducted through closed circuit television.  In that way,

1      Evidence Act 2006, s 103(3)(b).

2      Ibid, s 103(3)(c).

3      Ibid, s 103(3)(d).

4      Ibid, s 103(3)(f).

5      Ibid, s 103(3)(g).

she will  not be able to  see the accused  and  will  be separated  from  him  while evidence is given.

[6]      The question of the location from which the closed circuit television should operate is left open for the trial Judge to determine.

[7]      The  other  point  of  concern  involves  disclosure  in  the  report  of  the

complainant’s pregnancy.  As at the date of the report, 19 September 2012, she was

10  weeks  pregnant,  meaning that  by the time  of trial  scheduled  to  begin  on  5

November 2012, she will be something in the order of 18 to 19 weeks pregnant.

[8]      The   report   discloses   some   concerns   about   her   psychological   state, particularly given a prior event to which it refers.  Having said that, the report also makes it clear that a scan of the baby has revealed no problems with the pregnancy.

[9]      The possibility that her pregnancy might impact on whether the trial can proceed is something that needs to be considered closer to the time.   I direct the Registrar to arrange a telephone conference in about two to three weeks time, once the trial Judge is identified, so that he or she may be updated on that position.  That may also be an appropriate time for any directions to be given in relation to the location from which the closed circuit television evidence will be given.

[10]     For the reasons given, I make the following orders on the mode of evidence application:

(a)       The complainant’s evidence in chief shall be admitted in the form of

the video record tendered at the committal hearing.

(b)The complainant’s evidence under cross-examination and in re- examination, shall be given through closed circuit television from a location remote from the courtroom.

[11]     Leave to apply is reserved, in case any difficulties arise in relation to the trial.

P R Heath J