Director of Public Prosecutions v Sullivan
[2024] ACTSC 327
•16 September 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Sullivan |
Citation: | [2024] ACTSC 327 |
Hearing Dates: | 9 September 2024 – 24 September 2024 |
Decision Date: | 16 September 2024 |
Before: | Baker J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – application for witnesses to give evidence via audio-visual link – application opposed by defence for some witnesses – necessary facilities for AVL – more convenient for witnesses to give evidence by AVL – no unfairness to accused – where giving evidence AVL would reduce cost to a party – application granted |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 32 |
Cases Cited: | Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250 Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; 181 FCR 152 In the matter of Mulberry Capital Management Pty Ltd v Shen - AVL Application [2022] NSWSC 1023 KN v R [2017] NSWCCA 249; 95 NSWLR 767 R v AS [2023] NSWSC 885 R v Warwick (No.51) [2018] NSWSC 1555 Brodie v Streeter [2003] ACTSC 88; 180 FLR 176 |
Parties: | Director of Public Prosecutions ( Applicant) Jake Sullivan ( Respondent) |
Representation: | Counsel T Hickey ( Applicant) J Pappas ( Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Applicant) Hugo Law Group ( Respondent) | |
File Number: | SCC 322 of 2022 |
EDITED EX TEMPORE REASONS
BAKER J:
Introduction
By an application filed in Court this morning, the prosecution made an application under s 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) for the following witnesses to give evidence via audio-visual link (AVL):
(a)[redacted]
(b)[redacted]
(c)[redacted]
(d)[redacted]
(e)[redacted]
(f)[redacted]
(g)[redacted]
(h)[redacted]
In the affidavit of the prosecutor’s instructing solicitor, supplemented by oral information provided from the bar table, the prosecutor advised the court that arrangements had been made for [redacted], [redacted], [redacted], [redacted] and [redacted] to give evidence from Defence bases and police stations in other states and territories. I was informed that arrangements had not yet been made for [redacted] and [redacted] to give evidence via AVL. I understood those applications are not pressed at the present time.
Mr Pappas, who appears for the accused, consented to the application with respect to [redacted], [redacted] and [redacted]. I made orders under section 32 of the EMP Act permitting each of these witnesses to give evidence via AVL, having been satisfied of each of the requirements under that section. However, Mr Pappas opposed the making of such an order with respect to [redacted], [redacted], [redacted] and [redacted] on the basis that there would be unfairness to the accused if these witnesses were not required to give evidence in person.
Mr Pappas noted that each witness is a complaint witness, and that such evidence is particularly important in trials relating to sexual assault allegations. He submitted that it would be unfair to the accused if these witnesses were permitted to give evidence via AVL. In support of this submission, Mr Pappas provided a printout of a report of an Australian Bar Association Conference in which Bell CJ of the New South Wales Supreme Court cautioned against the use of remote hearings in criminal trials. However, as Mr Pappas fairly acknowledged, his Honour was there primarily concerned with the practice of holding criminal trials entirely by remote methods, as occasionally occurred during COVID-19, rather than the question of whether a witness should be permitted to give evidence via AVL pursuant to the statutory requirements of s 32 of the EMP Act.
Factual Background
On 6 August 2024, the prosecution sent an email to the accused’s legal representative, noting that various witnesses resided interstate, and asking whether the accused would consent to the evidence of those witnesses being given by way of AVL. In an email sent on 7 August 2024, the legal representative for the accused indicated that there would be no objection to the evidence of one witness, [redacted], being given by way of AVL, but that the accused did not consent to the other witnesses giving evidence via this means. That was the end of the discussion on that issue for the time being. The prosecution arranged for various witnesses to be flow to Canberra to give evidence during the trial.
For reasons which were not the fault of either party, the trial proceeded well beyond the five-day estimate that was provided to court. The Court did not sit on Wednesday 11 September 2024 owing to an illness of Mr Pappas. The complainant’s cross-examination did not conclude until mid-morning on Friday 13 September 2024. The remainder of Friday was taken up by other witnesses who either appeared in person or via AVL from a remote room within the court building in accordance with legislative requirements in this jurisdiction.
On the evening of 11 September 2024, that is the day that Mr Pappas was unwell, the prosecutor’s instructing solicitor sent an email to the accused’s legal representative which advised that, given the unpredictability of the present circumstances, a decision had been made for various witnesses to be flown home and that AVL applications would be made for various witnesses, including those set out at one above.
In an email sent the following morning, the accused’s legal representative advised the prosecution that the trial would be ready to resume that day. The email expressed concern that a “unilateral decision” had been made to excuse witnesses who had been required to attend court for the week. The email requested that the prosecution make all required witnesses available in person and advised that any AVL application would be opposed. In particular, the email noted that there did not appear to be any basis for the witnesses to give evidence remotely other than ‘potential inconvenience’.
Section 32 of the Evidence (Miscellaneous Provisions) Act
The power for the Court to make an order for a witness to give evidence via AVL from another jurisdiction within Australia is found in s 32(1)(b) of the EMP Act, which permits the Court to direct that a person give evidence to the court by audiovisual link “from a place outside the ACT but within Australia”.
Sections 32(2), 32(3) and 32(4) of the EMP Act provide as follows concerning the prerequisites to the making of an order under s 32(1)(b):
(1)The court may make the direction only if satisfied that—
(a)the necessary facilities are available or can reasonably be made available; and
(b)it is in the interests of the administration of justice to make the direction.
(2)In considering whether it is in the interests of the administration of justice to make the direction, the court may consider—
(a)whether the evidence or submission can more conveniently be given or made from the place; and
(b)whether the making of the direction is unfair to any party opposing the making of the direction; and
(c)whether the making of the direction could support court efficiency by reducing costs or delay to the proceeding; and
(d)anything else that the court considers appropriate.
(3)The court may at any time amend or revoke a direction made under this part, either on the application of a party to the proceeding or its own initiative.
Consideration
I am satisfied that the necessary facilities are available for [redacted], [redacted], [redacted] and [redacted] to give evidence via AVL. The court is equipped with AVL facilities which have been used throughout this trial. It is proposed that [redacted] give evidence from Newcastle Police Station which is also equipped with those facilities. I have been informed that the AVL room at Newcastle Police Station is available for use during this trial.
It is proposed that [redacted], [redacted] and [redacted] give evidence via AVL from Defence Barracks in Darwin. I have also been informed that the AVL facilities at this place are available for use during this trial.
I am also satisfied that it is in the interests of the administration of justice for a direction to be given with respect to these witnesses, permitting the use of AVL. In reaching this conclusion, I have taken into account the following matters.
It is more convenient to make the direction sought
The phrase “more convenient” is an expression used in a wide sense to include the convenience of the court, the parties and the witness in question: Brodie v Streeter [2003] ACTSC 88; 180 FLR 176 at [15]. This is an important, although not overriding, consideration in every case. [redacted] was residing in Newcastle at the time of the trial. [redacted], [redacted] and [redacted] are all presently residing in Darwin as a result of defence posting. Travel to Canberra for each witness would be time-consuming. In the case of the Darwin witnesses, it would involve travel in excess of eight hours each way.
The witnesses, in particular the Darwin witnesses, have already disrupted their lives by travelling to Canberra and waiting to give evidence in this trial. Through no fault of the witnesses, or the prosecution, it was not possible for them to give evidence in person during that time that the Court had first been provided, of the five-day estimate. It was necessary in those circumstances for the witnesses to be returned to their home state, rather than being required to remain in this jurisdiction for the weekend.
The Court should not lightly require further interruption to these witness’ personal and professional lives by requiring them to travel interstate to give evidence in this trial. In these circumstances, I am satisfied that the evidence can be more conveniently given by these witnesses by AVL rather than giving evidence in court.
The giving of a direction would not be unfair
I do not accept that it would be unfair to the accused for the evidence to be given via AVL.
The witnesses for whom a direction is sought are all complaint witnesses. Their evidence is limited in scope, and their credibility is unlikely to be in issue in the proceedings.
In any event, even if one or more witness’ credibility becomes an issue to some extent, I am satisfied that the accused will not be unfairly disadvantaged by these witnesses giving evidence via AVL.
It is to be borne in mind that the assessment of the credibility of a witness is an exercise which depends on “many more features than just an observation of the witness’ demeanour”: R v Warwick (No.51) [2018] NSWSC 1555 at [27]. Further, my own experience, consistent with that of judges in this jurisdiction and other courts is that, in most cases, evidence given by AVL is not less effective than evidence given in person. There are numerous decisions where it has been held that the demeanour of a witness can be adequately assessed by AVL: see KN v R [2017] NSWCCA 249; 95 NSWLR 767 at [67] and the cases cited therein.
The fact that this trial is being conducted before a jury does not alter these observations. As Wilson J recently observed in R v AS [2023] NSWSC 885 at [19]:
Evidence taken by such means has become much more familiar in recent years, corresponding to some extent with the greater use of electronic communication in the wider community. In ordinary society most people are now quite used to face to face communication at a distance by screen, by the use of AVL or some other similar means. Telephone calls incorporating a video facility are common, as is the use of applications designed to promote communication using a computer or camera enabled telephone. At the height of the COVID-19 pandemic, in 2020 and 2021, such measures were the only means of seeing friends or loved ones for many people. Partly because of technological advancement intended to meet the difficulties posed by restrictions upon movement and association in those years, most social activity and business can now be, and routinely is, conducted through a Smart Phone. It is possible to consult a doctor, hold a business conference, or chat with friends, through a camera and screen.
I have borne in mind that in some circumstances, the giving of evidence via AVL may deprive the cross-examiner (and the Court) of the “reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness”: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3)[2009] FCA 1306; 181 FCR 152 at [78], cited in Antov v Bokan (No 2) [2019] NSWCA 250; 101 NSWLR 142 at [50].
In my experience, this can be a significant issue where civilian witnesses are permitted to give unsupervised evidence, particularly in their homes. This concern does not carry particular weight, however, in the present case the witnesses will give evidence from Defence barracks and a police station which are places which themselves emphasise authority.
The witnesses are all defence personnel, who well understand the gravity of giving evidence under an oath or affirmation. Each witness will also be reminded at the commencement of their evidence that they are giving evidence in a Supreme Court before a judge and jury. I am satisfied that these matters will reinforce the gravity and immediacy of the oath or affirmation that they will take.
I am satisfied that cross-examination can proceed relatively smoothly with the use of modern technology. Whilst modern technology is not perfect, the issues which historically plagued the giving of evidence remotely, such as unstable connections and transmission lag times, are no longer as significant as they once were: In the matter of Mulberry Capital Management Pty Ltd v Shen - AVL Application [2022] NSWSC 1023 at [20].
Moreover, this Court is equipped with individual screens for each juror, as well as larger screens in the courtroom which will enable each witness to be seen and heard by the accused, counsel, the jury and members of the public. If at any stage of the examination or cross-examination the technology fails, it is open under the legislation for me to revoke the direction or any direction under this provision.
The prosecutor has confirmed that facilities will be made available to enable witnesses to be shown documents during their chief and cross-examination. In particular, documents may be emailed to the police station and printed out for the witness to be shown. Documents may also be shown to each witness via the Court’s document viewer: see similarly Warwick at [30].
In this trial a number of witnesses have already given evidence via AVL and was a result of the consent of the accused as a result of legislative requirements. This includes the complainant who is the most critical witness in this trial who gave evidence, including cross-examination, via an AVL link for in excess of a day.
In accordance with the legislative requirements of this jurisdiction, the jury has been directed that they are not to give the evidence of any of these witnesses any more or less weight as a result of it being given in this way and they are not to draw any adverse inference against the accused as a result of the evidence not being given in person. There is no reason to suppose that the jury would not follow these directions.
The direction would reduce cost to the proceeding
Section 32(2)(c) of the EMP Act requires the Court to consider “whether the making of the direction could support court efficiency by reducing costs or delay to the proceeding”.
The “costs” referred to in s 32(2)(c) encompass not only cost to the Court but also the cost to the parties to the proceedings. If the witnesses were required to give evidence in person, the prosecution would be required to incur the cost of flights and accommodation for the witnesses. In circumstances where the prosecution has already incurred significant expense in having the witnesses travel to Canberra during most of the first week of the trial, the giving of a direction would significantly reduce to the cost to the prosecution of calling evidence from these witnesses.
If a direction were not made, there would be delay to the trial, which has already exceeded the estimate that was provided to the jury. However, as this delay would be caused, at least in part, by the prosecution’s failure to make this application at an earlier time, I have not taken this matter into account in assessing where the interests of justice lie.
In conclusion, in assessing and weighing up each of the matters which I am required to consider under section 32 of the EMP Act, I am satisfied that it is in the interests of the administration of justice to make the direction that has been sought.
Orders
For the above reasons, the following orders are made:
(1)The following witnesses listed be granted leave to give evidence at the trial by audiovisual link from a place outside the ACT but within Australia:
(a)[redacted]
(b)[redacted]
(c)[redacted]
(d)[redacted]
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: |
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