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…

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 Judgment Suppressed

Details

AGLC: Judgment Suppressed [2008] WASC 150
Case: [2008] WASC 150
Decision Date: 17 JULY 2008

CaseChat Overview and Summary

The judgment in the suppressed case involved two accused persons, who were based in New South Wales, and two applications made under the Evidence Act 1906 (WA). The first application was for two pivotal witnesses to give their evidence via video-link from New South Wales, while the second application was for a special witness to give his evidence via video-link within the precincts of the court but outside the courtroom where the trial was being conducted. The trial judge dismissed both applications, and the accused appealed against the decision. The appeal was heard in the Supreme Court of Western Australia.

The primary legal issue before the court was whether the applications to have the witnesses give their evidence via video-link should be allowed, and the court had to consider the provisions of the Evidence Act 1906 (WA) in reaching its decision. The court had to balance the interests of justice with the use of technology as an aid to justice. The court also had to consider the effect of the applications on the accused's right to a fair trial, including the right to cross-examine witnesses.

The court found that the applications should be dismissed as there was no evidence to suggest that the witnesses would be unable to give their evidence in person. The court noted that the use of video-link facilities should be encouraged, but it should not override the traditional concerns of justice, especially in cases where the credibility of the witness in question is important. The court found that the applications did not meet the criteria for the use of video-link facilities under the Evidence Act 1906 (WA). The court also found that the accused's right to a fair trial would not be prejudiced if the witnesses gave their evidence in person.

The court dismissed the appeal and upheld the decision of the trial judge. The accused were not entitled to have the witnesses give their evidence via video-link, and the trial would proceed as scheduled. The court noted that the use of video-link facilities should be encouraged, but it should not override the traditional concerns of justice, especially in cases where the credibility of the witness in question is important. The court found that the applications did not meet the criteria for the use of video-link facilities under the Evidence Act 1906 (WA). The court also found that the accused's right to a fair trial would not be prejudiced if the witnesses gave their evidence in person.

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

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.