| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1583 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| STEVEN LESLIE FINN | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 JULY 2008 | |
DATE OF RULING: | 21 JULY 2008 | |
CASE MAY BE CITED AS: | DPP v FINN (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 303 | |
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RULING – Application for principal Crown witness to give evidence via video link – Whether additional danger to her or danger to other members of the community were she to give evidence in court rather than by remote facility – Whether an accused has a fundamental right to confront a witness in court – Whether fear of witness such as to materially interfere with her ability to give evidence if physically present in court - R v Cox, Sadler, Ferguson & Ferguson [2005] VSC 364 and R v Goldman [2004] VSC 165 distinguished.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Forrester | Angela Cannon, Solicitor for Public Prosecutions |
| For the Accused | Mr J. Dickinson | Slades & Parsons |
HIS HONOUR:
This is an application by the Crown pursuant to s.42E of the Evidence Act 1958. That section is headed "Appearance etc by audiovisual link or audio link".
It is, as Mr Dickinson for the accused pointed out in his submissions on the application, a merely permissive provision. The section permits evidence to be taken by audiovisual link or audio link, but is not intended specifically to protect witnesses who would otherwise be reluctant to give evidence in open court in the presence of an accused person.
The section has been the subject of applications made in a number of recent cases. One of those not cited to me this morning but which is nevertheless (it seems to me) of direct relevance is that of R v Cox, Sadler, Ferguson & Ferguson[1] an unreported decision of Kaye J of 14 September 2005.
[1][2005] VSC 364.
In that case his Honour had to deal with a number of individual applications by the Crown to have Crown witnesses give their evidence by remote facility. His Honour allowed one of the applications but disallowed the other two.
In the case in which the application was allowed, there was a danger that the witness might be assassinated while travelling to or from the court. In those circumstances, his Honour was of the view that the safety of the witness warranted an order being made pursuant to s.42E. His Honour took into account the fact that not only might the witness's life be in peril were the witness brought to court, but persons within the vicinity of the courtroom might also be in danger.
In the case of the other witnesses, questions of their personal safety in coming to court and giving evidence were not as great. Accordingly, his Honour disallowed those applications.
A similar application under s.42E of the Evidence Act was granted by Redlich J in R v…
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- AGLC
- Director of Public Prosecutions v Finn (Ruling no 1) [2008] VSC 303
- Case
- [2008] VSC 303
- Decision Date
CaseChat Overview and Summary
The legal issues at hand involved balancing the rights of the accused to confront their accusers with the safety and well-being of the witness. The court considered the precedents set in R v Cox, Sadler, Ferguson & Ferguson [2005] VSC 364 and R v Goldman [2004] VSC 165, where similar issues were addressed. These cases established that while the right to confront witnesses is fundamental, it is not absolute and must be weighed against the potential harm to the witness and the community. The court had to determine if the risk to the witness's safety was substantial enough to justify allowing her to give evidence via video link.
The County Court found that the potential danger to the witness if she were to testify in person was significant. The court noted the witness's credible fear of the accused, which could materially affect her ability to give evidence. It was held that the risk to the witness and potential danger to others outweighed the accused's right to confront the witness in person. Consequently, the application for the witness to give evidence via video link was granted, ensuring her safety while allowing the trial to proceed. The court's ruling emphasised the importance of protecting witnesses and ensuring the integrity of the trial process.
The final orders of the court allowed the principal Crown witness to testify via video link, ensuring her safety and the integrity of the proceedings. The court recognised the necessity of protecting witnesses from undue harm and ensuring that the trial could proceed without compromising the safety of those involved. This decision underscores the importance of balancing the rights of the accused with the need to protect witnesses and maintain public safety.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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