DPP v Johnson & Ors (Ruling no 2)

[2007] VSC 577

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1553 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
LANCE CRAIG JOHNSON, BRIAN DAVID ZERNA, SHANE FRANCIS BUGEJA, GEORGE ERNEST LIPP AND KHODI ALI	Accused

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATES OF HEARING:	29 October 2007
DATE OF RULING:	30 October 2007
CASE MAY BE CITED AS:	DPP v Johnson & Ors (Ruling no 2)
MEDIUM NEUTRAL CITATION:	[2007] VSC 577

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CRIME – Ruling – Application for witness to give evidence via video-link.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Tovey QC with Mr S Milesi	Office of Public Prosecutions
For the accused Mr Johnson	Mr S Robertson	Chester Metcalfe & Co
For the accused Mr Zerna	Mr L Barker	Patrick W Dwyer & Associates
For the accused Mr Bugeja	Mr I Polak	Leanne Warren & Associates
For the accused Mr Lipp	Mr P Marin	Yianoulatos Lawyers
For the accused Mr Ali	Mr G Georgiou	Victoria Legal Aid

HIS HONOUR:

1. This is Ruling no 2.

1. The prosecution makes an application under s 42E of the Evidence Act1958 to have the evidence of a witness given by audiovisual link.  The five accused are standing trial on drug‑related charges.  The witness will give evidence of the chemicals he allegedly supplied to certain of the accused for the manufacture of drugs.

1. By my order the witness can be identified by his name in court but not otherwise.  In this ruling I will use his nom de plume, which is "PTO".

1. The prosecution puts forward two main grounds for the application: one, the witness is serving a sentence of imprisonment and his security may be at risk if fellow prisoners discover he has given evidence against the accused; two, he is in poor health and suffering from specific medical conditions that will make it very difficult for him to give evidence in court.

1. The two accused most likely to be affected by PTO's evidence are Mr Johnson and Mr Zerna, although all of the accused may be affected in one way or the other.  Counsel for all of the accused have opposed the application.

1. As to the first ground, I do not give this much weight.  There is a risk that fellow prisoners will discover PTO has given evidence against the accused and take an adverse view of it, but this risk is usually well‑managed by the prison authorities.  I will take this matter into account but only as a subsidiary consideration.

1. As to the second ground, I think this has real substance.  PTO's medical condition was described by Eames J on his judgment in PTO's sentence in these terms, and I quote:

A psychiatric report provided by a doctor discloses that you have suffered sleep apnoea for the last eight years and, for approximately the last six years, chronic alcoholism. 

A report from a medical centre, discloses that your sleep apnoea has been treated since 1998.  At that time you disclosed a nine year history of nocturnal panic attacks and other consequences of your condition.  Studies disclosed that you suffered up to 21 incidents of apnoea per hour of sleep.  You commenced CPAP therapy in 1998 which gave you some relief and sleep.  Since then you have gained 20 kgs in weight.  Your heavy snoring and sleep apnoea continue to be problems, however, notwithstanding the benefits of the CPAP therapy.  The doctor treating you noted your other medical conditions, which included hypotension, anxiety state, multiple nasal fracture and other conditions.  Your sleep apnoea, snoring and other conditions associated with it would make imprisonment very difficult for you.

1. His Honour went on to say, and I quote:

You suffer anxiety, and also a panic attack disorder, to a very severe degree.  I heard evidence of the extraordinary impact of that disorder.  Your panic attacks are so severe that you are unable to fly.  When offered a job in New South Wales which required you to attend for an interview, you were unable to get on to the plane and your luggage flew to Sydney without you.  You then attempted to travel by train but another panic attack was so great that shortly after leaving Spencer Street the train was stopped at Broadmeadows and you were removed. 

Your panic attacks cause you to perspire heavily, you lie on the ground and can’t breathe and it has the appearance of you suffering an epileptic seizure.  These attacks can come on you even when travelling in a motor vehicle, and I was told, and accept, that you have been unable to travel, for example, over the Westgate Bridge or even the Bolte Bridge.  You have even been forced to get out of a car and lie by the side of the road when an attack comes upon you.  Your anxiety and panic attacks will have a profound impact on you in prison.

1. I have an affidavit from Megan Bridgett who is the Acting General Manager of Sentence Management at Corrections Victoria.  She is not a medical practitioner but she confirms PTO's various health issues and the challenges that these present to his transport and giving evidence.  In her oral evidence she mentioned several practical ways in which she said the problems could be ameliorated, and I will take these into account.

1. I also have a report dated 8 June 2006 from a person described as Dr Heather Crockart.  I am not sure of Dr Crockart's qualifications, but her report is generally consistent with the findings of Eames J.

1. It is clear from the medical evidence, especially that reviewed by Eames J, that PTO will have great difficulty giving evidence personally in court to an abnormally high degree.  He is likely to suffer from extreme stress, anxiety and distress due to the experience of giving evidence in that way.  It is quite likely he will suffer from panic attacks of greater or lesser severity.  Nobody is suggesting PTO is not suffering from medical conditions of the kind described, or that his symptomatic response to giving evidence in court will not be genuine.

1. I think the prosecution has made out a strong case for receiving PTO's evidence by audiovisual link, for he is much more likely to be able to give evidence under tolerable levels of stress if he were to do so in that manner.

1. The defence oppose the use of the audiovisual link and they do so on cogent grounds.  The various arguments advanced include these: (1) PTO should have to face the persons whom he accuses directly; (2) His evidence is very important, especially against Mr Johnson and Mr Zerna; (3) He will be cross‑examined vigorously and at length and there will be practical difficulties in doing so by audiovisual link.  One example offered was the need to play a body of audio material to him, which will be difficult by that means; (4) Various practical measures explored by me in argument and as mentioned by Ms Bridgett would greatly ameliorate PTO's medical response to giving in evidence person and the defence would support the adoption of these measures without comment; (5) The medical evidence is weak and out of date; (6) PTO's medical condition did not stop him from participating in drug trafficking, which is a high‑stress occupation and involves driving.

1. These argument all point to the rejection of the application and of course I will take them into account.

1. Section 42E(1) of the Evidence Act 1958 confers a discretion to allow evidence to be given by video‑link.  The discretion is expressed in open terms.  It is to be exercised in the interests of justice and should not be exercised if the result would be to produce an unfair trial: see R v. Goldman (2004) 148 A Crim R 40 at 46‑47 and the authorities reviewed in that judgment of Redlich J.

1. Weighing all these matters up, I think I should allow the evidence to be given by audiovisual link.  I think these are the critical considerations: (1) PTO's evidence is material to the prosecution case; (2) I am satisfied PTO suffers from various medical conditions of the kind described.  If he gives evidence personally in court he will therefore experience abnormal stress and probably traumatic stress.  If he gives evidence in person there is a real risk the process will become unmanageable.  That risk can be significantly minimised by allowing the audiovisual link to be used; (3) Counsel for the defence should be able to conduct an effective cross‑examination by audiovisual link.  If it turns out they cannot, I will review the situation; (4) Having regard to the nature of PTO's medical condition, and what giving evidence personally in court would involve, I do not think that the issues can properly be addressed by the various practical arrangements that have been mentioned; (5) I do not think the defence of the accused will be prejudiced by the use of the audiovisual link and I do not think the use of that link would produce an unfair trial.

1. I will therefore direct pursuant to s 42E(1) of the Evidence Act that PTO give evidence by audiovisual link from his location in Victoria.  I make this direction on the assumption that the technical requirements specified in s 42G will be met, as to which I will make due inquiries at the relevant time.

1. I expressly reserve the possibility of revoking this direction if that becomes necessary.  I will hear submissions on what, if anything, I should tell the jury additional to the compulsory warning specified in s 42V.

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