Director of Public Prosecutions v Byrne

[2016] VSC 216

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CI 2015 0108

DIRECTOR OF PUBLIC PROSECUTIONS

v  

DWAYNE MICHAEL BYRNE

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 MAY 2016
DATE OF RULING:	4 MAY 2016 (revised 6 May 2016)
CASE MAY BE CITED AS:	DPP v BYRNE
MEDIUM NEUTRAL CITATION:	[2016] VSC 216

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CRIMINAL LAW — Evidence —Trial adjourned through no fault of parties — Application by prosecution to take evidence before trial from witness with pre-arranged travel plans — Application opposed – Interests of justice – Discretionary considerations – Criminal Procedure Act 2009 (Vic) ss 198, 232.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J McWilliams	Office of Public Prosecutions
For the Defendant	Mr R Edney	Melinda Walker Solicitors

HIS HONOUR:

1. In this proceeding the accused faces two counts, one of attempted murder and one of intentionally causing serious injury.  His trial was scheduled to commence on Monday 2 May 2016.  However, it was necessary for the trial to be adjourned to 6 June 2016 as the court was unable to provide a judge and courtroom for the trial to commence on 2 May 2016.

1. When those arrangements were made, the prosecutor was not aware that one of the witnesses, Ms Rochelle Jerard, had made arrangements to travel overseas on 21 May 2016 without a fixed return date, expecting that the trial would have been completed by that time. The Crown is now caught unawares by the inability of the court to hear the trial on 2 May and the potential absence of the witness on the adjourned date. 

1. The Crown has applied for an order pursuant to s 198 of the Criminal Procedure Act2009 which provides that:

At any time except during trial a party to a criminal proceeding may apply to the court for an order that the evidence (including cross‑examination and re‑examination) of a person be taken at a time and place fixed by the court.

Sub‑section 2 provides relevantly that:

An application may be made under subsection (1) only if… (c) it is reasonably anticipated that the person will be unavailable to give evidence at the trial of the accused; [or if]… (e) for any other reason the court considers that it is appropriate that the evidence of the person should be taken before the trial of the accused.

1. Sub‑section 4 provides that:

The court must not make an order referred it in subsection (1) unless it is satisfied that it is in the interests of justice that the evidence of the witness be taken.

1. The witness was in the company of the victim at the time of the alleged offence and is in that sense an eye‑witness. The accused contests the identification of him as the offender.  I am satisfied that the witness is a key witness in the trial and that it is in the interests of justice that her evidence be taken. 

1. Further, I am satisfied that with modern communications technology available to the court and the parties for taking evidence, it is likely that any adverse consequences of taking the evidence in this manner can be dealt with. It is proposed that the evidence be video recorded prior to the commencement of the trial, and be available to be played back to the jury. Section 232 of the Act relevantly permits a person to give evidence by means of playing an audio-visual recording.

1. The accused opposed the application. He raised a concern that issues might arise during the trial that would not be able to be put to the witness because of her absence from the jurisdiction at the time when those issues arose, and that for this reason there might be an element of unfairness or prejudice to the accused.  It is possible that such a situation might arise.  However, I consider that there are a number of precautions that can be taken against that consequence and the prospect of unfairness. I note that there is also the prospect that even were the trial to commence with the witness available, the prosecution might well determine to call her as one of the first witnesses, in which case she might then be excused from giving further attendance, resulting in a like issue arising.

1. The witness's plans are that she will be in Bali from 1 June and I infer from the information that has been provided by the statement that she has made dated 29 April 2016 about her overseas trip that she has not planned to travel to any other part of Indonesia or any other part of the world. There is no reason not to expect that video conferencing facilities of some sort, including Skype, could be arranged with the witness in Denpasar in order that any further issue that may have arisen might be put to her, and the necessary evidence taken. Further, it is also the case that if a sufficiently significant issue arose, it could be arranged for the witness to return from Denpasar to Melbourne for the purposes of giving further evidence. 

1. However, those matters are matters for a fall‑back position. The primary position is that sufficient is known of the circumstances of this case to enable competent counsel to appropriately cross‑examine the witness when she gives her evidence prior to leaving the country and in the ordinary course of events it would appear unlikely that it would be necessary to invoke such unusual arrangements as I have referred to above. For these reasons it is my preference that the witness's evidence be taken in the manner that is proposed pursuant to s 198 of the Act and any situation that may later arise during the trial may be dealt with in one of the forms that I have outlined.

1. Accordingly, I shall order that the evidence of the witness Rochelle Jerard in the trial be taken prior to the trial, including cross‑examination and re‑examination, at a time and a place to be fixed. 

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