Judgment Suppressed
[2003] WASC 145
•1 AUGUST 2003
R -v- SLATER [2003] WASC 145
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 145 | |
| 01/08/2003 | |||
| Case No: | INS:39/2003 | 30 JULY 2003 | |
| Coram: | ANDERSON J | 1/08/03 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| A | |||
| PDF Version |
| Parties: | THE QUEEN GRAEME SLATER |
Catchwords: | Criminal law and procedure Evidence Method of taking Audiovisual link Principles Courts and Judges Closed courts Establishment of remote public gallery with audiovisual links Avoidance of disruption Protection of jurors from possible intimidation |
Legislation: | Criminal Code, s 635 Evidence Act, s 121 |
Case References: | Ngo v R (No 2) (2001) 124 A Crim R 151 Woodside Petroleum Development Pty Ltd & Ors v H&R-E&W Pty Ltd & Ors, unreported; SCt of WA, Library No 970206, 28 April 1997 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
GRAEME SLATER
Respondent
Catchwords:
Criminal law and procedure - Evidence - Method of taking - Audiovisual link - Principles
Courts and Judges - Closed courts - Establishment of remote public gallery with audiovisual links - Avoidance of disruption - Protection of jurors from possible intimidation
Legislation:
Criminal Code, s 635
Evidence Act, s 121
(Page 2)
Result:
Application allowed
Category: A
Representation:
Counsel:
Applicant : Mr S Vandongen
Respondent : Mr C L Lovitt & Mr L Levy
Solicitors:
Applicant : State Director of Public Prosecutions
Respondent : Laurie Levy & Associates
Case(s) referred to in judgment(s):
Ngo v R (No 2) (2001) 124 A Crim R 151
Woodside Petroleum Development Pty Ltd & Ors v H&R-E&W Pty Ltd & Ors, unreported; SCt of WA, Library No 970206, 28 April 1997
Case(s) also cited:
Nil
(Page 3)
1 ANDERSON J: I have before me a Crown application to have the evidence of two witnesses, Sidney John Reid and Natasha Jeronimo Moutinho given by audiovisual link from a remote location and an application for orders designed to create a remote public gallery to which the proceedings in Court would be transmitted by audiovisual link. The directions which are sought in this latter application would involve all but a limited category of persons being excluded from the courtroom and for the jury to be "off screen" so to speak.
2 The trial is listed to commence on 1 September 2003 and is expected to last 3 months. It is the Crown case that the accused in his capacity as a senior member of the Gypsy Jokers motorcycle club participated in the placing of a bomb in a car and then detonated the bomb killing Mr Donald Leslie Hancock and Mr Lawrence William Lewis. The Crown case is that this was an act of revenge for the shooting death of a member of the Gypsy Jokers, a Mr Grierson. I am told that evidence will be led that the accused and his associates had formed the belief that Mr Hancock was responsible for Mr Grierson's death. Mr Lewis was a friend of Mr Hancock but had no other involvement in the events leading up to the bombing.
3 It is common ground that the only direct evidence implicating the accused in the bombing is the evidence of Mr Reid. The Crown case is that Mr Reid was a member of the Gypsy Jokers or a nominee for membership and assisted Mr Slater to plant the bomb which killed Mr Hancock and Mr Lewis. He has pleaded guilty to and has been sentence for the wilful murder of both deceased and he has given statements to the police and has agreed to give evidence at Mr Slater's trial. Ms Moutinho was and I think still is Mr Reid's girlfriend. She too is to give evidence which is expected to confirm some aspects of Mr Reid's evidence.
4 The basis of the application is that the co-operation of the two witnesses with the police thus far and the expectation that they will give evidence against Mr Slater has made them targets. There is affidavit evidence before me to the effect that efforts have been made by Gypsy Jokers' members or associates of club members to find both Mr Reid and Ms Moutinho and do them harm. It was submitted that there are additional reasons why Mr Reid is or might be at grave risk from these quarters.
5 Mr Reid gave evidence in the trial of Gary Ernest White for the wilful murder of Anthony David Tapley. Mr Reid was the principal
(Page 4)
- Crown witness and on the strength of his evidence Mr White was convicted of the wilful murder of Mr Tapley and sentenced to life imprisonment with a minimum of 22 years. Mr White was not a member of the Gypsy Jokers but was and is an associate of members of that club including Mr Slater. There is evidence that Mr Reid is a principal Crown witness in another case pending against Mr White and Mr Slater and three other club members who are alleged to have carried out a series of bombings at Ora Banda in October 2000 which destroyed or seriously damaged property belonging to Mr Hancock.
6 There is affidavit evidence before me to the effect that the Gypsy Jokers are a nationally organised criminal group with a membership in Western Australia of approximately 70 and with affiliated groups in New South Wales, Victoria, South Australia and Queensland. There is evidence that Mr Slater holds the senior position of Sergeant at Arms for the Western Australian chapter of the club and that the club rules include a rule to the effect that any member or nominee who gives "evidence detrimental to the club in court" is to be "punished accordingly". In par 6 of his affidavit of 29 July 2003 Detective Senior Sergeant Brown of the Western Australian Police Service attached to the Major Crime Investigation Unit said:
"6. The Gypsy Jokers:
• are a highly organised criminal group whose activities include sophisticated drug distribution and acts of extreme violence against their counterparts and members of the community;
• apply a sophisticated and co-ordinated approach to surveillance and intelligence gathering
• live by a code of revenge and actively engage in a culture that promotes intimidation and violence against those who stand against them.
• have a hatred of police and substantial distain for the judiciary, including jurors; and
• are 'anti authority' and do not conform to the rules of society unless it serves some other alternate purpose such as to disguise other activities or criminal acts."
(Page 5)
7 Detective Senior Sergeant Brown also deposed that between September and June 2003 police operations against club members and/or their associates have resulted in the seizure of 28 unlicensed firearms, 3,773 rounds of unlicensed ammunition, 3.2 kilos of cannabis, 3.6 kilos of amphetamine and 1,004 ecstasy tablets together with $647,335 in cash.
8 It is a fair summary of the Crown case on this application that the Gypsy Jokers as an organisation have the motive, the capacity and the desire to kill Mr Reid for what he has done so far and to stop him giving evidence in the future. The prosecutor, Mr Vandongen, submitted that Ms Moutinho is also in grave danger in two respects, firstly, as a person expected to give damaging evidence against Mr Slater in this trial and, secondly, as a means of getting at Mr Reid. As I understood the submission it was to the effect that if the Gypsy Jokers or their associates succeed in harming Ms Moutinho this will have a salutary effect upon Mr Reid and might cause him to stop co-operating with the authorities.
9 It was submitted by Mr Vandongen that in these circumstances the Court should infer that there is a real threat to the lives of both Mr Reid and Ms Moutinho should they be required to come to Court to give their evidence. Furthermore, he submitted that there is a risk of serious collateral damage to buildings and people should an attempt be made on the lives of either witness in the precincts of the Court; and that the extraordinary security measures that would have to be put in place to protect the two witnesses would result in a great deal of disruption to the functioning of the Court and to people going about their business in the city. Finally, he submitted that the extent of the security measures would be such as to place unreasonable demands on the resources of the law enforcement agencies, with no guarantee that in the end they would be successful.
10 On behalf of the accused Mr Lovitt QC did not resist the Crown's application for a remote public gallery but strongly resisted the application with respect to the evidence of Mr Reid and Ms Moutinho. As he rightly pointed out the general rule is that the Crown case must be presented in the presence and hearing of the accused who should normally be able to confront his accusers and this "right" is significantly degraded if the accuser is present only in the form of an image on a video screen. He pointed out that in this case Mr Reid was the accuser in a real sense in that without his evidence the Crown would have no case. It was therefore, he said, especially important that there be no impediment at all to the jury's assessment of Mr Reid's credibility and that there be no hindrance at all to the cross-examination of Mr Reid. He submitted also that the prejudicial
(Page 6)
- effect of the proposed procedure - the adverse inference which the jury would naturally draw from the highly protective measures being taken with respect to Mr Reid and Ms Moutinho - could never be eliminated by proper direction.
11 It is clear that I have a discretion to make the orders sought by the Crown. The rule laid down by s 635 of the Criminal Code to the effect that the whole of the trial must take place in the presence of the accused person is expressly made subject to s 121 of the Evidence Act and that section authorises the Court to direct that "evidence be taken … by video link or audio 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."
12 Counsel were not in dispute that the discretion is to be exercised after a balancing of competing interests and what I have to decide is whether the matters raised by the Crown outweigh the normal right of the accused to have the whole trial take place in his presence.
13 The taking of evidence by video link is now almost a commonplace and it has been my experience as a trial Judge that technical developments in recent times have been such that there is little difference between an in-court experience and a video link reception of evidence. Of course, an image on a screen creates a different atmosphere from that which is created by the physical presence of the witness in the witness box in the courtroom but these days all the matters that go to the credit of a witness are there on clear display. As I pointed out in Woodside Petroleum Development Pty Ltd & Ors v H&R-E&W Pty Ltd & Ors, unreported; SCt of WA, Library No 970206, 28 April 1997, it is always possible that a proceeding conducted in this way may deprive the tribunal of a complete susceptivity to everything that goes to the credit of a witness, but the difference between it and an in-court experience might now be regarded as marginal.
14 Mr Reid gave evidence by audiovisual link at the trial in this Court of Mr White for the murder of Mr Tapley and there is affidavit evidence before me to the effect that the image and sound were of good quality. In the Woodside case to which I have referred, which was a civil case conducted as long ago as 1997 I ordered that the evidence of an important witness be received by audiovisual link from Texas. I subsequently heard the evidence by that means. I had no difficulty with matters such as demeanour and felt myself at no disadvantage. The witness concerned
(Page 7)
- was extensively cross-examined and my recollection is that cross-examining counsel appeared to be at no disadvantage.
15 Still, as was pointed out by Dunford J in Ngo v R (No 2) (2001) 124 A Crim R 151 at 153 the practice of requiring witnesses to give evidence orally and to be confronted in the presence of the jury ought not to be waived lightly. The grant of leave for the giving of evidence by audiovisual link depends on an assessment as to whether it will advance the course of justice.
16 I am satisfied that the authorities genuinely believe that if Mr Reid and Ms Moutinho are required to attend Court in person the danger to them will be so great that extra-ordinary measures will have to be taken in efforts to ensure their safety. I am satisfied on the affidavit evidence that there is a justification for these fears. It is to be borne in mind that the deaths of Mr Hancock and Mr Lewis occurred in the most horrendous circumstances. They were blown up in a car in a suburban street by a bomb which caused a massive explosion large enough not only to kill them but anyone nearby. It was simply fortuitous that no-one else was nearby. So much is notorious fact which is not in dispute. It is also the fact that this explosion was preceded by the series of bombings of Mr Hancock's property at Ora Banda, in which powerful explosive devises were used.
17 I think that against this background of the demonstrated capacity of interested persons to do great harm to people who they consider to be their enemies, and to do it without regard for the level of collateral damage that might ensue to other people, the course of justice is best served by granting the Crown's application.
18 There will be orders in terms of the application except that to par 3 I will add a paragraph which will allow bona fide journalists to be present in the courtroom. I propose also to qualify par 3(e) to ensure that only those police officers considered necessary to provide proper security may be present. The orders will be:
"1. The evidence of SIDNEY JOHN REID be taken at the trial of this matter by video link at a place that is outside the court room or other place where the court is sitting, pursuant to section 121(1) of the Evidence Act 1906.
2. The evidence of NATASHA JERONIMO MOUTINHO be taken at the trial of this matter by video link at a place that is outside the court room or other place where the
- court is sitting, pursuant to section 121(1) of the Evidence Act 1906.
- 3. All persons be excluded from the court-room or place of hearing during the whole of the trial or other criminal proceedings in this matter pursuant to s.635A(2) of the Criminal Code, with the exception of:
(a) The trial Judge and his staff,
(b) Members of the Jury,
(c) Counsel or solicitors engaged in the trial,
(d) Any witness during the time in which they are giving evidence,
(e) Police officers engaged in courtroom security,
(f) Authorised Court personnel
(g) journalists employed by registered daily newspapers or licensed television stations or licensed radio broadcasters.
4. The trial or other criminal proceedings be transmitted by video link to a public gallery at a place which is outside the court room or other place where the court is sitting.
5. The video link facilities be arranged such that the members of the jury cannot be seen at the place where the trial or other criminal proceedings are transmitted, but such that the rest of the court room is visible as far as is practicable."
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