In the Matter Of An Application By the Director Of Public Prosecutions

[2010] ACTSC 138

IN THE MATTER OF AN APPLICATION BY THE DIRECTOR OF PUBLIC PROSECUTIONS
[2010] ACTSC 138 (28 October 2010)

EX TEMPORE JUDGMENT

No. SCC 138 of 2010

Judge:              Mathews AJ
Supreme Court of the ACT

Date:               28 October 2010

IN THE SUPREME COURT OF THE       )
  )          No. SCC 138 of 2010
AUSTRALIAN CAPITAL TERRITORY    )          

IN THE MATTER OF AN APPLICATION BY THE DIRECTION OF PUBLIC PROSECUTIONS

ORDER

Judge:  Mathews AJ
Date:  28 October 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

1. This is an application on behalf of the Crown to order that a Crown witness, Mr Shane Jolijoli, give his evidence via audio link from a suitable place in the Northern Territory, at the impending trial of Henry, Helmut and Karl Kryger.  The trial has been set down for hearing on Monday, 8 November 2010. 

1. The application is supported by the affidavit of Amanda Judd, a solicitor for the DPP, who says that Mr Jolijoli is currently a civilian in training to be a sworn officer with the Northern Territory police.  He is in his third week of training of 10 weeks.  The trial is scheduled to take place in the middle of his firearms training, which is difficult to re-schedule.  On the basis of information provided to Ms Judd, if Mr Jolijoli has to leave the training, even for one day, to give evidence in person, he may potentially be placed into another squad which will not commence until the beginning of next year.  This would create hardship for his family; and I do not think it is necessary to enlarge on that. 

1. It is to be noted that even if Mr Jolijoli were to give evidence via audio link, he would still be required to absent himself from his training.  It is therefore a question of the duration of his absence from the training program.  It has to be noted that there is no certainty whatsoever that Mr Jolijoli would suffer prejudice from leaving the course for a short period.  The affidavit says that he “may potentially” be placed into another squad. 

1. On the other hand, as Mr Kukulies-Smith has pointed out, he is one of the major Crown witnesses, indeed the primary witness in relation to the case against Helmut Kryger.  His demeanour will be central to the acceptance of his evidence by the jury and there is every likelihood that he will be asked to demonstrate particular features of the activities of the night in question, during the course of his evidence.  This can create significant difficulties over the audio/visual link, and certainly lacks immediacy for the jury. 

1. In all the circumstances, it appears to me that the making of a direction could be unfair to the accused, particularly the accused Helmut Kryger, who has opposed the making of the direction. 

1. Accordingly, I am not satisfied of the matters set out in section 20(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and I decline to make the orders sought in the application.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Mathews.

Associate:

Date:     8 November 2010

Counsel for the Applicant:  Ms K Weston-Scheuber
Solicitor for the Applicant:  Director of Public Prosecutions for the ACT
Counsel for the Respondent:  Mr M Kukelis-Smith
Solicitor for the Respondent:  Kamy Saeedi Lawyers
Date of hearing:  28 October 2010
Date of judgment:  28 October 2010