Judgment Suppressed - [2008] WASC 150

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- DUFF [2008] WASC 150

CORAM: EM HEENAN J

HEARD: 17 JULY 2008

DELIVERED : 17 JULY 2008

FILE NO/S: INS 131 of 2007

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
BRANDON McLEOD DUFF
First Respondent
CHRISTOPHER CHARLES HENRY MILLS
Second Respondent

Catchwords:

Criminal law - Practice and procedure - Application to hear evidence via video-link from two interstate accused - Pivotal witnesses - Applications dismissed - Special witness - Evidence to be taken via video-link within precincts of the court but outside courtroom where trial conducted - Distress likely to be caused to witness if evidence given in court - Application allowed

Legislation:

Evidence Act 1906 (WA)

Result:

First application dismissed
Second application dismissed
Third application allowed

Category: B

Representation:

Counsel:

Applicant:     Mr J C Whalley
First Respondent           :     Mr S B Watters
Second Respondent       :     Mr E C De Vries

Solicitors:

Applicant:     Director of Public Prosecutions (WA)
First Respondent           :     Thames Legal
Second Respondent       :     Andree Horrigan

Case(s) referred to in judgment(s):

Mills v Hendriksen [2008] WASC 79
The Bell Group Ltd (In Liquidation) v Westpac Banking Corporation [2004] WASC 162

EM HEENAN J: Firstly, I have before me an application by the State of Western Australia on behalf of the Director of Public Prosecutions to take evidence by video‑link from a witness in New South Wales at the forthcoming trial on indictment of Brandon McLeod Duff and Christopher Charles Henry Mills. Mr Duff and Mr Mills are due to stand trial before a judge and jury of this court some time next week on an indictment containing six counts.
It is the first two counts of the indictment which are material to a consideration of the present application. They are that on 27 October 2003 at Halls Head, Duff and Mills stole from one Sheryl Ann Ham and Carolyn June Evans, with threats of violence, money the property of Halls Head Community Financial Services Ltd trading as the Halls Head Community Bank Branch of Bendigo Bank and that they were both armed with a dangerous weapon, namely a gun, and that they were in company with each other. The second count is that on 27 October 2003 at Erskine, Duff and Mills wilfully and unlawfully destroyed a motor vehicle and that the motor vehicle was destroyed by fire.
Both Duff and Mills are represented by counsel on this application and for the forthcoming trial, and through counsel oppose the application for the video‑link evidence to be permitted. It is necessary therefore for me to turn to s 121 of the Evidence Act1906 (WA) which relates to the use of video‑link evidence at a trial. It provides in s 121(1):
that subject to this section a WA court may on its own initiative or on the application of a party to a proceeding in or before the court, direct that in that proceeding evidence be taken or a submission be received by video‑link from a person at a place, whether in or outside this State, that is outside the courtroom or other place where the court is sitting.
Section 121(4) deals with the law applying in the place where the witness is giving evidence and I need not go into that in this present case. It is necessary to assess this application in the context of the potential significance of the witness whose evidence is sought to be taken by video‑link. The witness is a man named Chilcott who is presently serving a sentence or sentences of imprisonment in New South Wales. The proposal is that his evidence be taken by video‑link from facilities within the prison or some other appropriate facility in New South Wales and that it be displayed in the courtroom before the jury in Perth so that counsel can examine and cross‑examine from Perth and the witness respond from New South Wales.
I am satisfied for the purposes of s 121 that the facilities are available and that in all the circumstances adequate practical arrangements are available for evidence to be taken in the manner by which the courts are accustomed to receive video‑link evidence. I would not expect any practical or logistical difficulties in taking evidence in that fashion.
That does not dispose of the matter. It is necessary to consider whether or not it is in the interests of justice in the wide sense that this should be done. For that, I return to the potential significance of Chilcott's evidence at this trial. I am informed by counsel, and it appears to be common grounds, that he is a vital, perhaps pivotal, witness for the prosecution, at least in relation to the case against Mills and only to a marginally less extent, if at all, in the case against Duff.
The bank robbery and the destruction of the get‑away vehicle which are the subject of count 1 occurred, so I am informed, using a car which for some time at least was in the possession or control of Chilcott. The prosecution alleges that Chilcott made the car available to the two accused for use in the robbery and, so the evidence is, that Chilcott had a discussion or discussions with the accused after the commission of the crime in which each made admissions or statements amounting to admissions of their role in the proceedings. Accordingly, Chilcott's evidence is to the effect that crucial admissions were made to him by each of the accused. I am told that without Chilcott's evidence, there is essentially no case against Mr Mills and that the case against Duff is also very highly dependent upon the evidence of Chilcott to such an extent that I am satisfied without going into the details that I should regard the prominence of Chilcott's evidence as virtually being the same. I am informed by counsel for each accused that they are in possession of evidence and instructions which would justify an attack on the credibility of Chilcott. These include apparent inconsistencies in a number of statements made by Chilcott to the police in relation to this investigation, in relation to the possession by Chilcott of clothing or other implements associated with the robbery and various other matters which counsel quite justifiably in the performance of their forensic function consider should not be disclosed in advance. I therefore accept the assurance that there are reasons, some of which are disclosed, others of which remain known only to counsel, to justify an attack on Chilcott's credit.
If his credit were to be substantially impaired or destroyed, it is obvious that the prosecution case against each accused would be very significantly diminished if not destroyed. Therefore, the reliability and truthfulness of Chilcott as a witness becomes a very important part of this case. I have been taken by counsel for Mr Mills to a decision of Hasluck J, Mills v Hendriksen [2008] WASC 79 in which his Honour allowed an appeal from a conviction of this same Mills, before a magistrate on a different charge.
In that case his Honour was dealing with a ground of appeal which alleged that video‑link evidence admitted at the trial of Mills before that learned magistrate had wrongly been received. Coincidentally the evidence was from the same witness Chilcott, but nothing turned on that. The point of the decision in Mills v Hendriksen so far as it extends to the present case is that the application for the use of video‑link evidence under s 121 of the Evidence Act was dealt with ex parte and, as it turned out, without the learned magistrate referring adequately to the considerations which are germane to the exercise of the powers under s 121.
His Honour therefore allowed the appeal on that ground but did not have to deal with the question of whether or not on a properly conducted application on notice it was appropriate for Chilcott to give evidence in that case. Nevertheless, there are some passages in Hasluck J's judgment which are helpful in the sense that they illustrate the principles applicable to decisions about whether or not video‑link evidence should be permitted whether in a civil trial or in a criminal trial.
These passages to which I have been taken commence at [129] of Hasluck J's reasons and refer specifically to s 121 of the Evidence Act at [134]. His Honour states that consideration was given to these statutory provisions by Owen J in TheBell Group Ltd (In Liquidation) v Westpac Banking Corporation [2004] WASC 162. His Honour then goes on to distil [at 137]the propositions emerging from Owen J's treatment of those provisions in that earlier case:
His Honour went on to say that these considerations provide a basis for adopting a liberal interpretation of such remedial legislation. He said at [36] that the effect of the interests of justice falls to be determined in the circumstances of the particular case. It is by taking into account all competing factors that the court ensures that the exercise of power will not prejudice unfairly the parties to the action.
At [169] his Honour Owen J reviewed decided cases expressing caution about the use of video‑link facilities as the court may be at a disadvantage at assessing the credit of a witness whose evidence is to be taken by video‑link. However, his Honour adopted the analysis of Austin J in Australian Securities and Investment Commission v Rich [2004] NSWSC 467. This reflected two main principle propositions being, first, that the court should encourage the use of electronic aids and, second, that there will be exceptional cases in which the court will insist upon proceeding by viva voce evidence: see ACCC v World Netsafe Pty Ltd [2003] FCA 116 at 11 and Australian Securities and Investment Commission v Rich.
Hasluck J concluded this passage in his judgment by saying:
In summary, then, it seems that weight should be given to the use of technology as an aid to justice but this must not override the traditional concerns of justice, especially in cases where the credibility of the witness in question is important. Each case will depend upon its circumstances.
It is necessary now for me to turn to the submissions advanced by the state in support of the application to take evidence from Chilcott by video‑link from New South Wales. The application is supported by an affidavit from Mr Whalley sworn 15 July and is accompanied by written submissions.
The facts are that if Chilcott is required to give evidence in person, arrangements would need to be made for him to be brought by aeroplane from New South Wales to this State on 20 or 21 July 2008 to allow adequate time for proofing and trial preparation. It is expected that he may be in a position to return to New South Wales on 24 or 25 July 2008.
However, the submissions of counsel for the accused suggest that a longer than anticipated cross‑examination of Mr Chilcott might result and therefore it follows that he may be required to be in Perth for longer than the prosecution has presently estimated.
Continuing with the affidavit, the security arrangements necessary to put such an attendance of Chilcott into effect are that the New South Wales Corrective Services Department will require two of its officers to travel with and remain with the witness at all times. This supervision will include all travel to and from the court and to be in court when Chilcott gives evidence.
The New South Wales Corrective Services Department will not permit these roles to be carried out by Western Australian police nor by court‑contracted security providers. The only exception to this requirement is during periods in which Chilcott would be in secure accommodation in this state, whether in a prison or a police watch‑house. The New South Wales corrective services officers could then return to other accommodation before collecting Chilcott from the secure accommodation the next morning.
It follows that the cost of bringing Chilcott to this State would extend to encompass commercial air travel for him and the two corrective services officers, the full daily pay rate for those officers, plus any applicable allowance, accommodation costs, ancillary expenditure and the hire costs of a vehicle for use in this state. All that would need to be met by authorities in this state without contribution from any New South Wales department. The cost of a return flight is estimated at $1,400 per person.
I appreciate that considerable practical and logistical difficulties are therefore involved if the conventional procedure of bringing Chilcott to give evidence in person is to be insisted upon. I also consider that substantial savings and efficiency in the use of government resources could be expected to result if taking evidence by video is to be permitted.
I also accept that there have been very many examples where video‑link evidence has been taken from witnesses in this jurisdiction, both in the civil and criminal jurisdictions. I myself have presided over cases both in the criminal and civil jurisdictions where evidence in this fashion has been taken from witnesses in remote parts of this State, from interstate capitals and from major international centres in Britain, Scotland, Canada, the United States and other parts of the world. I have no doubt that it can be done and that in many instances it works well. Nevertheless, I am concerned to ensure that justice according to law is achieved in this case.
I bear in mind that the decision as to guilt or innocence, according to the facts in this case, will depend to a very great extent upon issues of credibility and reliability of Chilcott and that these are decisions to be formed by an ordinary jury selected in this state. It seems to me on balance that this is a case which requires the presence of this witness in person, and I therefore refuse this application

Application for the use of video‑link to take evidence from Mr Mayes

There is a further application by the State of Western Australia on behalf of the Director of Public Prosecutions in relation to the same indictment pending against Messrs Duff and Mills, which I described in the reasons which I have just given. The application in this case is for the evidence of a witness, Mr Mayes, to be taken on video‑link from a prison complex in Queensland. Again, I am satisfied under the provisions of s 121 of the Evidence Act that a satisfactory, practical and reliable audio and visual communication links could be established to receive the evidence.
What I am concerned about is whether in all the circumstances it is in the interests of justice that this be done. It is unnecessary for me to repeat those considerations which I have just enunciated while dealing with the application concerning Mr Chilcott and much of what I have said on that occasion is relevant to the present application.
In this circumstance, the evidence of the proposed witness Mayes, relates only to the alleged involvement of the accused Duff, not in relation to counts 1 and 2 on the indictment but in relation to counts 3, 4, 5 and 6. Count 3 alleges the accused committed on a different date, 12 February 2004, a bank robbery upon the Commonwealth Bank of Australia at Spearwood. It is an allegation of a charge of armed robbery while armed with a dangerous weapon, a gun and a knife, and that Duff was in company with others.
The fourth count is that Duff stole from an individual person, with threats of violence, money the property of that person when he was armed with a dangerous weapon, a gun and a knife, and that he was in company. Count 5 is another allegation of armed robbery while armed with a dangerous weapon, a gun and a knife, in company with others from a third person at Spearwood. Count 6 is that on that date, he wilfully and unlawfully destroyed a motor vehicle by fire.
The role of the witness Mayes is, I am told, that quite some time after this alleged crime, he was visiting a place which was frequented by Mills and where Duff also was in the habit of visiting. On the particular occasion of this visit, Duff was present with Mayes and a conversation developed. In the course of that conversation, so it is alleged, Duff made a series of statements admitting his involvement in some detail in the offences which are the subject of counts 3, 4, 5 and 6 in this indictment. These admissions would be powerful evidence against Duff at his forthcoming trial.
However, that is not the only evidence against Duff of his involvement in this course of alleged criminal conduct. I am informed by the prosecutor that at the stage where the offenders were making their get‑away in a motor vehicle from the robbery at the bank, a piece of paper was seen to drop from the car. This was retrieved and it proved to be a receipt given only some short time before from a commercial outlet for the sale of a mask which, so it will be alleged, was worn by one of the offenders during the commission of the offence as part of an attempted disguise.
Furthermore, it will be the case for the prosecution that a fingerprint was detected upon this receipt, which has been matched to the accused Duff. Therefore there is other evidence, potentially powerful evidence, to inculpate Duff in the commission of this offence. That however does not undermine the importance or significance of the testimony of Mayes and again because his credit and reliability is, I have been so advised by counsel, to be the subject of challenge, the impression of his reliability before the jury will be a very significant part in this case.
I am told that Mr Mayes, while needing similar security arrangements to those described when dealing with the application for Chilcott, is not such a high level security prisoner and need be accompanied by only one security officer from Queensland rather than two. Accordingly, the expense of bringing him may be somewhat less. I do not really think, however, that that is a factor for consideration.
I am of the view that the estimation of the reliability and credit of this witness Mayes is likely to be so important in the outcome of this case that he should be brought to give evidence in person and again I refuse this application.

Application for Ms Howard to be declared a special witness

There is a third application, again by the State of Western Australia on behalf of the Director of Public Prosecutions relating to the forthcoming trial of Messrs Duff and Mills on the same indictment alleging the six counts already described. The application on this occasion is for the evidence of a witness for the prosecution, Karen Marie Howard, to be taken under circumstances following a declaration that she be declared a special witness. Accordingly this application is made pursuant to s 106R(3)(b) of the Evidence Act.
It seeks an order that Ms Howard be declared a special witness so that arrangements can be made for her evidence to be given by video‑link from a place within the precincts of the court, but outside the courtroom where the trial will be conducted. This enables her examination and cross‑examination to take place in front of the jury by counsel addressing her via the video‑link and her responses being displayed on a screen in the courtroom. Again, there is no doubt that adequate and reliable practical arrangements can be put in place to facilitate such a procedure.
Section 106R(3)(b) states that the grounds on which an order may be made declaring a person a special witness are if they would be likely to suffer emotional trauma or to be so intimidated or distressed as to be unable to give their evidence or to give evidence satisfactorily by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject matter of the evidence or any other factor that the court considers relevant.
The application is opposed by counsel for Mr Mills but not by counsel for Mr Duff. It is necessary, therefore, to put the potential significance of Ms Howard's evidence in context. It relates, so far as the present application is concerned, to counts 1 and 2 in the indictment; namely, that both Duff and Mills were involved in an offence of armed robbery with aggravation at Halls Head on 27 October 2003 and subsequently wilfully and unlawfully destroyed a motor vehicle on the same date. Again, I will make reference to the considerations which I have described in the two previous rulings in these reasons, and adopt as already adequately described, the background of these alleged offences given on those occasions.

In this situation, the position is that at the material time Ms Howard was the girlfriend of or in a relationship with the witness Chilcott. She was, at least on the day of the alleged offence or the day before, living with Chilcott at a residence in or near Mandurah. According to her, she had been involved with others in renting a motor vehicle, a Commodore sedan, from a hire outlet some days before. That was the vehicle which, so the prosecution alleges, was used by the offenders in the robbery and was the getaway vehicle and the vehicle subsequently destroyed.
The prosecution case is that the letting arrangements were fraudulent and designed to facilitate the commission of this intended crime. Ms Howard was involved in the arrangements for letting that vehicle and has since been charged and convicted of an offence relating to her involvement in the hire of the vehicle. She has been dealt with in another court and is the subject of some non‑custodial sentence.
She says, and it is not contested, that she was heavily involved in the illicit drug scene at the time of these events and has since reformed, started a new life, has a new partner and family. The evidence of significance which she might give in this case is that on the morning of the alleged offence, that is 27 October 2003, Mills attended at the place where she and Chilcott were living and collected the car and drove away with it. This puts Mills in the vehicle which, so it was contended for the prosecution, can be proved to be the vehicle involved in the commission of the robbery and puts him in a position of taking possession of that vehicle in effect in preparation for the crime.
Her evidence therefore is significant and is likely to be important for the determination of the case. It is desirable for reasons which I have already voiced in relation to the first two applications that issues of truthfulness and reliability of the witness should be assessed by the jury. Unlike the situation arising with the witnesses Chilcott and Mayes, Ms Brown is at liberty in the community and is circulating much as any other member of the public and she is apprehensive for her safety if she gives evidence against Mills and already indicates that the ordeal of giving evidence is likely to be distressing for her and to involve her in severe emotional trauma.
It is pointed out that if she gives evidence, even as a special witness, the prospect of some kind of recrimination or retaliation, if it exists at all, would not be materially different and that the ordeal would possibly be equally distressing. The submissions made on behalf of the prosecution, however, are that the prospect of a person‑to‑person confrontation between this witness and Mr Mills and others who might be expected to be in the courtroom would be greater and more intimidating and distressing than giving evidence via the video‑link.
A further and not insignificant consideration is that Ms Howard is about to give birth. She is expected to give birth to a baby some time towards the end of this month and she has any mother's concerns that the stress and intimidation which might be involved in this process could have adverse consequences upon her in her present condition. These are not inconsiderable factors.
It seems to me that if there is any basis for Ms Howard to feel intimidated, and the fact that she was effectively involved in a crime scene associated with one or other of the accused and others at the time, seems to me to provide a basis for a reasonable apprehension of fear, and if she considers that she would be particularly intimidated or distressed by a personal confrontation with Mills, the basis exists for an order to be made.
She is in a particularly emotional and susceptible condition and I am comforted in making the order I am about to make to allow this application, as I realise that if something were to develop in the course of giving evidence which rendered this process unsatisfactory in the sense that personal evidence might be required, it would be open to the court to reconsider or vary this order on that occasion or to refuse to make such an application and leave the position where the jury could be informed that the particular matter of concern had not been as fully addressed as might have been the case had the witness been available in the witness box. However, there is no real suggestion that anything like that might occur. In these circumstances I am satisfied that an order should be made declaring Ms Howard a special witness, and that she should be permitted to give evidence in accordance with the arrangements proposed by the prosecution.