DPP v Finn (Ruling no 1) - [2008] VSC 303

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Finn (Ruling no 1)

Details

AGLC: Director of Public Prosecutions v Finn (Ruling no 1) [2008] VSC 303
Case: [2008] VSC 303
Decision Date: 21 July 2008

CaseChat Overview and Summary

The case of DPP v Finn (Ruling no 1) involved the Director of Public Prosecutions (DPP) as the prosecutor and Finn as the accused. The dispute centered on the application for the principal Crown witness to provide evidence via a video link instead of appearing in person. The matter was heard in the County Court of Victoria. The primary concern was whether the witness would face additional danger or if there was a risk to other members of the community if she testified in court rather than remotely. Additionally, the court had to determine if the accused had a fundamental right to confront the witness in person and if the witness's fear of the accused would significantly hinder her ability to testify if she were physically present in the courtroom.

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