R v Johnson (No 3) [2019] NSWSC 142

Supreme Court New South Wales

Medium Neutral Citation: R v Johnson (No 3) [2019] NSWSC 142 Hearing dates: 6; 7; 11 February 2019 Date of orders: 11 February 2019 Decision date: 11 February 2019 Jurisdiction: Common Law Before: Campbell J Decision: Warrant ordered Catchwords: EVIDENCE LAW – Witness giving evidence – witness failing to appear – issue warrant to bring the witness before the court to give the evidence Legislation Cited: Evidence Act 1995 (NSW), ss 79, 194 Category: Procedural and other rulings Parties: Regina (Crown) Douglas Johnson (Accused) Representation: Counsel: G.J. Tabuteau (Crown) E. Ozen SC (Defence)

Solicitors: Office of the Director of Public Prosecutions (Crown) Ross Hill & Associates (Accused) File Number(s): 2017/195278

Judgment 1. During the course of this trial a witness, Jing Peng, has been on two separate occasions, the latter of them today, called outside the courtroom and failed to appear*. The learned Crown Prosecutor has now applied under s194 of the Evidence Act 1995 (NSW) for the issue of a warrant requiring Ms Peng's attendance at court to give evidence. 2. Section 194 is but one of many sources of power for the Court to make orders compelling attendance. So far as material in the present case it provides that if a witness fails to appear when called in any criminal proceeding, and it is proved that the witness has been duly served with a subpoena, the Court may, if it appears that the nonappearance is without cause or reasonable excuse, and the witness will probably be able to give relevant evidence in the proceedings, issue a warrant requiring the witness to be brought before the Court to give evidence. 3. I am satisfied from the affidavit of service of Detective Senior Constable Casey Trappmann that she personally served the witness with a subpoena to give evidence at 4pm on 9 December 2018 at the witness' home. Quite apart from that Affidavit of Service, I have also received a statement from the officer dated 8 February where she details her various contacts with the witness about the need for the witness to attend court and give evidence in accordance with the subpoena. I have also seen the statements that the witness made to the police. 4. She was employed as an assistant in the Twin's Shoe Shop, where Mr Morrison was killed, allegedly murdered by the accused, and although it seems that her attention was distracted, she has made a statement which includes paragraph 11, made on the very day of the events which states as follows: "I heard some noises from the direction of the males which sounded like fighting. I would describe the noises as "boom boom". At the same time as the noise I heard a male voice say, "No no". I did not look at these males." 1. There are doubtless other relevant details in the statement. The evidence does not seem to me to be critical evidence in the Crown case; it does not seem that the Crown's case would be substantially weakened if it were not called. I accept that the threshold test in the legislation, that is to say the test of relevance, is relatively low. 2. One should also bear in mind that this is a trial of the accused for murder, the most serious crime on the criminal calendar, except perhaps for treason, and that in those circumstances persons should not lightly be permitted to ignore their obligations as citizens to attend court in answer to a subpoena, and to give the relevant evidence that they can give. This is particularly so given the obligation of the Crown to provide a full and complete narrative of all material facts from which a decision can be made, in this case by me, about the accused's guilt or innocence. 3. The only aspect of the matter which has concerned me somewhat, and is the reason why this interlocutory judgment is perhaps longer than one might expect, is the need for the Crown to prove that Ms Peng's nonappearance is without just cause or reasonable excuse. Perhaps unusually there is in the material some evidence from which a question arises about whether she does have just cause or reasonable excuse. 4. From the time she was served with the subpoena Ms Peng has told Detective Senior Constable Trappmann that she does not wish to attend court, and she has provided "medical certificates" explaining her inability to do so. Apart from that, the day after she was served with the subpoena she spoke to the officer and, amongst other things, said this: "I have nearly forgotten everything. I am unhealthy now. That's why I cannot go back to work. Yesterday night, whole night I cannot sleep. I really want to recovery myself." 1. In addition to that evidence, and I do not propose to recite other things said by Ms Peng along similar lines, she has provided a medical certificate from a Dr Karen Pok dated 11 December 2018. Dr Pok states that Ms Peng is: "Not fit to attend court due to having generalised anxiety. Attending court will exacerbate her symptoms. She will not be fit for three months." As I discussed with counsel, there is nothing in that statement of "generalised anxiety" which suggests that the witness suffers from any recognised psychiatric condition as documented in the usual diagnostic manual referred to by psychiatrists, DSM-5. And as Mr Ozen observed in passing, if anyone was in the position to give such a diagnosis, it would be a registered medical practitioner like Dr Pok, and she has failed to do so. 1. There is also a certificate dated 11 January 2019 from a Ms Lois Li, who describes herself as a psychologist. I do not know whether she is registered, she does not say so, but I am prepared to assume that she is. Ms Li proffers that Ms Peng, "Suffers from PTSD". She describes her patient's symptoms. It seems, from what she writes that the symptoms date from the matter with which we are concerned in this trial. She also says that Ms Peng's symptoms have escalated since she's been contacted about her court appearance. Ms Li regards Ms Peng as having been traumatised by the court order for attendance. That is to say the subpoena. 2. I think it is manifest that in the requirements of the law of evidence, and in particular s 79 of the Evidence Act, a psychologist is not by reason of her training, study and experience equipped with the type of specialised knowledge that doctors hold entitling a doctor to make a medical diagnosis. With respect to Ms Li she has a Bachelor of Social Sciences specialising in Psychology, and is an Associate Member of an organisation which I take to be the Australian Psychological Society. Those qualifications with respect, admirable as they are, do not qualify her in my judgment to make a medical diagnosis of Post-Traumatic Stress Disorder. 3. Whereas I have misgivings about the significance of her evidence, I am satisfied that the Crown have established that first, that she does not have just cause for not attending; and secondly, that she can give relevant evidence. In those circumstances I think it appropriate that I direct that a warrant be issued to bring her before the Court in order that she may be required to give evidence. 4. I simply wish to say that it is the experience of the courts that very many people experience anxiety about the prospect of coming to court to give evidence. It is the experience of the Court that often when they arrive, that anxiety can be dispelled, and they can give coherent evidence. It would of course be inimical to the administration of criminal justice, and I think to the community's expectation of what is required of members of the community in trials for serious crimes, especially murder, if persons were lightly able to plead anxiety as a reason for non-attendance at court. 5. Every proper measure will be taken to attempt to accommodate her anxiety, but in the circumstances, given the seriousness of what is at stake in this trial, for the family of the deceased, for the accused, and for the community, it is appropriate that she be required to give evidence, and in the circumstances I direct that on the application of the Office of the Director of Public Prosecutions, the Registry issue a warrant under s 194 of the Evidence Act 1995, or otherwise under the Criminal Procedure Act, empowering any Police Officer to arrest Ms Peng and bring her directly to court for the purpose of giving evidence at this trial. *It should be recorded that before the warrant was executed Ms Peng appeared in answer to the subpoena and gave evidence voluntarily.