R v AS

[2023] NSWSC 885

Supreme Court

New South Wales

Medium Neutral Citation:

R v AS [2023] NSWSC 885

Hearing dates:

26 July 2023

Date of orders:

26 July 2023

Decision date:

31 July 2023

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

WN is to give evidence to the Court by audio visual link from a place within New South Wales, other than the courtroom at which the Court will sit pursuant to s 5B(1) of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW)

Catchwords:

CRIMINAL LAW & PROCEDURE – evidence –evidence by audio video link – application opposed – traumatised witness – evidence of likelihood of psychological harm attaching to giving evidence in court – emotional distress – Afghani community and view taken of divorce – interest of administration of justice – broad term which includes the interest of witnesses - immediate supervision in remote witness room of witness – no obvious unfairness to the accused

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence (Audio and Audio-Visual Links) Act 1998 (NSW)

Cases Cited:

DJX; SCY and GCZ (1990) 91 Cr App R 36

KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249

R v Sigalla [2016] NSWSC 1178

Rooney v AGL Energy Limited (No 2) [2020] FCA 942

Category:

Procedural rulings

Parties:

Rex (Crown)
AS (Accused)

Representation:

Counsel:
S Traynor (Crown)
N Steel (Accused)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Velasquez Legal (Accused)

File Number(s):

2020/243134

Publication restriction:

Restricted to the parties pending verdict or further order; thereafter to be published in anonymised form in compliance with s 15A(1)(c) of the Children (Criminal Proceedings) Act 1987 (NSW)

JUDGMENT

1. HER HONOUR: The trial of the accused, AS, is listed to commence on 2 August 2023, before a jury of 15. The Court heard evidence with respect to a range of matters during a pre-trial hearing conducted intermittently in June and July. This judgment refers to one of those matters, and provides the Court’s reasons for granting an application made by the Crown for an order pursuant to s 5B(1) of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW) (“Evidence A&AVL Act”) directing a witness, WN, to give evidence to the Court by audio visual link (“AVL”) from a place within New South Wales, other than the courtroom at which the Court will sit. The order, made on 26 July 2023, permits the witness to give the whole of her evidence, expected to commence on 2 August 2023 and continue until 9 August 2023, from a remote witness room in either the Downing Centre or Taylor Square Courthouses. What follows are the reasons for the order made by the Court.

2. The accused stands indicted on the charge that, on 27 June 2020 at Auburn in the State of New South Wales, he murdered his infant son, Baby A. He entered a plea of not guilty to that charge when arraigned before the Court on 5 August 2022. Ms N is the accused’s now ex-wife, the couple having divorced on 14 August 2022. She is also the mother of the deceased infant, the subject of the charge against the accused. Ms N is the principal witness in the Crown case against the accused.

The Evidence

3. In support of the application for an order under the Evidence A&AVL Act the Crown read the affidavit of Daniel Wotton affirmed on 24 July 2023. The deponent is the solicitor with the carriage of this matter for the Crown. He received two requests conveyed to him on Ms N’s behalf by support personnel presently assisting her in the community or with the court proceedings, asking that she be allowed to give her evidence at the forthcoming trial by means of AVL from a place other than the court room. He was provided with a copy of the order of the Federal Family and Circuit Court dated 13 July 2022 dissolving the marriage of the witness and accused from 14 August 2022, and a letter from Nasreen Hanifi, a psychologist.

4. Ms Hanifi said in her letter of 5 July 2023 that she has been working with Ms N in a professional capacity for two years and is concerned at the adverse impact upon her client’s well being if she were to be required to give evidence at her former husband’s trial in the courtroom in his presence. Ms Hanifi opined that:

“… being in the same room as her ex-husband and the [alleged] perpetrator, poses a significant threat to her emotional and psychological well-being. The pain and difficulty associated with revisiting traumatic events can further impede her progress in recovering from the trauma she endured.”

5. Ms Hanifi thought that the effect of requiring Ms N to see her ex-husband and give evidence of the traumatic events surrounding her son’s death in the accused’s immediate presence could be detrimental to her, and negatively affect her sense of safety and stability. It would, she thought, set back the work that Ms N has done over the last two years to deal with the grief and trauma that she has experienced.

6. Ms Hanifi was required for cross-examination and gave evidence via AVL on 26 July 2023. She confirmed her opinion that Ms N would likely be adversely affected by seeing her former husband, and that would damage the “healing process” that she has been undertaking over the past two years. She would likely experience symptoms of intrusive “flashbacks” and insomnia if forced to see the accused and be subject to emotional breakdown in the witness box.

7. Ms Hanifi thought that her client would be better enabled to give her evidence if she could not see the accused, and if she was not exposed to a public gallery. This latter concern arose because of the shame and disapproval that the Afghani community attaches to a divorced woman, no matter the circumstances surrounding the divorce.

8. In cross-examination Ms Hanifi deposed that her client had already given some evidence touching upon the death of her son, in proceedings in the Children’s Court, and had been distressed by that experience, suffering from flashbacks and sleeplessness for a time thereafter. Considerable therapy had been required to assist her after that experience. Since her divorce from the accused Ms N has not seen him at all and is most unwilling to do so. Ms Hanifi understood that Ms N was obliged to testify at the trial and believed her to be capable of doing so, albeit with a need for ongoing counselling. Her concern was with the more significant negative consequences for her client if her evidence was required to be taken in the presence of the accused.

The Submissions

9. The Crown’s submission was that there is no obvious unfairness to the accused in the witness giving her evidence remotely, and using that process would better allow her to give her evidence, with less distress and thus less delay, as she would be unlikely to need regular breaks to regain composure.

10. The available facilities will permit evidence to be given by AVL without inconvenience, as any exhibits required to be shown to the witness can be provided to the attending Court Officer for that purpose ahead of time. The facilities from a court remote room are of high quality such that it is not anticipated that there would be any disadvantage in terms of seeing and hearing the witness.

11. Insofar as Ms N’s credit may be impugned, a jury can be regarded as able to assess the reliability of a witness giving evidence remotely: KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249, at [66]-[67].

12. The accused submitted that an order permitting the witness to give evidence via AVL would be unfair to him and thus not in the interests of the administration of justice. He referred to the importance of a “face to face confrontation” with Ms N and, citing Rooney v AGL Energy Limited (No 2) [2020] FCA 942, at [18] per Snaden J, the significance of the court room to best ensure the preservation of the forensic benefits of that environment.

13. The accused referred to some of the practical difficulties that might arise, including the inability to hear and record by sound the evidence of Ms N, given in the Dari language; the possible technological problems with playing listening device product to her in a remote room; and the problems with showing documents or other things to her there.

Determination

14. The power for the Court to order that a witness give evidence via AVL, and the test that applies to the making of such an order, is found in s 5B of the Evidence A&AVL Act, which (relevantly) provides:

“5B   Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally

(1)  Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.

(2)  The court must not make such a direction if—

(a)  the necessary facilities are unavailable or cannot reasonably be made available, or

(b)  the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or

(c)  the court is satisfied that the direction would be unfair to any party to the proceeding, or

(d)  the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.

(2A) ….

(3)  In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.”

15. (Neither s 5B(2A) nor s 5BAA have application in the present context.)

16. Section 5B(2) sets out the circumstances in which the Court cannot make the order sought whilst, having regard to the accused’s opposition, ss(3) provides the test: an order must not be made unless it is in interests of the administration of justice to do so.

17. I am not persuaded that any of those matters raised in s 5B(2)(a)-(d) apply. The trial will be held at the Darlinghurst Court House with connections available to the remote witness rooms in both that complex and the Downing Centre Court House (s 5B(2)(a)). The facilities are of good quality and do not ordinarily experience fluctuations in sound or picture quality, as commonly occurs with wireless connections. The use of the facilities should occasion no inconvenience and, with some forethought, neither would the necessity of showing exhibits to the witness cause difficulty. There will be no technological problem in recording by sound the testimony of the witness in Dari and the interpreter in English. Both will be seated at a microphone and, if necessary, they can be asked to speak up, as witnesses in the court room frequently are. Listening device recordings can be played to the witness in the same way as would apply to a witness in the court room. Its is convenient to take the evidence remotely (s 5B(2)(b)).

18. The accused argued that it would be unfair to him to permit the witness to use the AVL facility for her evidence, but I do not accept that submission. In the modern era, evidence is commonly taken in this way and the judicial sky has not yet fallen in. Criminal trials have proceeded, and justice has been administered.

19. Evidence taken by such means has become much more familiar in recent years, corresponding to some extent with the greater use of electronic communication in the wider community. In ordinary society most people are now quite used to face to face communication at a distance by screen, by the use of AVL or some other similar means. Telephone calls incorporating a video facility are common, as is the use of applications designed to promote communication using a computer or camera enabled telephone. At the height of the COVID-19 pandemic, in 2020 and 2021, such measures were the only means of seeing friends or loved ones for many people. Partly because of technological advancement intended to meet the difficulties posed by restrictions upon movement and association in those years, most social activity and business can now be, and routinely is, conducted through a Smart Phone. It is possible to consult a doctor, hold a business conference, or chat with friends, through a camera and screen.

20. Recognising the convenience of communication via electronic means some witnesses, “government agency witnesses” as defined by s 5BAA(5) of the Evidence A&AVL Act, must give evidence via AVL from any place in the State, not necessarily a court room, presumably for reasons of convenience and efficiency.

21. More generally, the use of an AVL facility by a court to take evidence remotely began well before the pandemic, in response to the needs of witnesses who it was anticipated might find the process of giving evidence in a court room particularly difficult. Such measures were adopted because of the experience of the courts of traumatised witnesses whose trauma was exacerbated by having to sit in a witness box in the presence of strangers (even in a closed court, where there are still many participants and staff) and answer questions about an event the witness regards as distressing.

22. The measures used to lessen the stress of giving evidence prior to the advent of AVL facilities were quite limited and somewhat clumsy, typically involving the erection of a large screen between the witness box and the dock. The Crown referred the Court to one example of the use of a screen, considered in DJX; SCY and GCZ (1990) 91 Cr App R 36, where three children who had made allegations of “almost every permutation of sexual perversion” imaginable, perpetrated by three family members, were permitted to give evidence at trial with a screen in place. On appeal to the Court of Appeal of the United Kingdom the Lord Chief Justice observed, at 39:

“It had become apparent from experience that children in cases such as this, not surprisingly, were shown to be reluctant to give evidence at all. Again we are told that there had been cases which had collapsed simply because the child was unwilling or unable to speak as to the facts of which he or she was expected to speak.”.

23. His Lordship said of the decision by the trial judge to use a screen in the court room (at 40):

“The learned judge has the duty on this and on all other occasions of endeavour­ing to see that justice is done. Those are high sounding words. What it really means is, he has got to see that the system operates fairly: fairly not only to the defendants but also to the prosecution and also to the witnesses. Sometimes he has to make decisions as to where the balance of fairness lies. He came to the conclusion that in these circumstances the necessity of trying to ensure that these children would be able to give evidence outweighed any possible prejudice to the defendants by the erection of the screen.

This Court agrees with him in that view”.

24. The consideration of seeing that justice was done equates broadly with the concept of ensuring that the interests of the administration of justice are met. The views of the Lord Chief Justice are likely to be endorsed by anyone who has seen a child or an apparently distressed adult complainant endeavouring to give evidence about an experience regarded by the person as deeply disturbing, from the witness box, in the close presence of the accused. Such evidence is often compromised by the process.

25. Recognising that, the legislature has progressively introduced measures to permit certain categories of witnesses, including children, vulnerable persons, and complainants in prosecutions for most sexual, and domestic violence, offences, to give evidence by less potentially injurious means. See generally Parts 4B, 5 and 6 of Chapter 6 of the Criminal Procedure Act 1986 (NSW); and Division 4 of Part IAD of the Crimes Act 1914 (Cth).

26. Evidence given by alternative means has not been found, as a general proposition, to result in unfairness to accused persons. Whilst it is sometimes asserted that an accused person is entitled to confront a witness in a court room – expressed in R v Sigalla [2016] NSWSC 1178 as to “see the whites of the witness’s eyes” – a dramatic confrontation must be regarded as a very outdated trope of an archaic system of criminal justice.

27. What seems to be inherent in a stated entitlement to confront a witness is the ability by so doing to have an opportunity to unsettle or even intimidate a witness. The administration of justice is not furthered by frightening witnesses such that their evidence suffers. Depriving an accused person of the opportunity to benefit from the diminished quality of evidence adversely affected by the unsettling or even torturous procedure of extracting it is not an unfairness.

28. The remaining consideration under s 5B(2) is not in issue, since Ms N is willing to give her evidence remotely. Nothing in s 5B(2) prevents the Court making the order sought.

29. The final test is whether it is in the interests of the administration of justice to do so. That involves balancing the interests of the accused, the Crown, the community in seeing criminal trials proceed efficiently, and also the interests of witnesses, not least in being enabled to testify in an environment which is perceived to be safe and does the least possible harm to them in the circumstances.

30. To some extent any witness, even an uncontroversial witness, unfamiliar with giving evidence is likely to feel some disquiet at the process. A witness who has been personally affected by the event to be described in evidence will likely find the experience distressing, even highly damaging. It is hardly in the interests of justice to further torment such a witness by making his or her experience of the criminal justice system as negative and potentially harmful as is possible.

31. Here Ms Hanifi, who has been treating Ms N since 2021, has expressed the opinion that, if her client is required to give evidence in court, her evidence may suffer, and the witness certainly will. I accept that evidence.

32. It is not the function of the criminal justice system to inflict psychological harm upon persons subpoenaed to give evidence in a court (although it must be conceded that this frequently, and regrettably, occurs). I am satisfied that the accused will have a proper opportunity to cross-examine Ms N whether she is in the witness box or in a remote witness room, and equally the jury will be able to assess the reliability of the evidence she gives.

33. The witness will be in a Court House, and under the immediate supervision of a Court Officer. She will be required to take an oath or affirmation, and she will see both counsel and the trial judge when she gives her evidence. There is no reason to suppose that her location in a remote witness room, away from the immediacy of the stern gaze of a judicial officer, will somehow facilitate false evidence, as the accused suggested. The process of testifying before the Supreme Court is likely to be sufficiently intimidating in a remote witness room as in a court room as to cause a witness to reconsider any plan to deceive. If a witness is determined to perjure him or herself, I doubt that the presence of a judge would make any difference to such a person.

34. Any evidence Ms N gives from a remote location is likely to be taken more smoothly, and with less emotional distress – a feature which is in the accused’s interests as much as the interests of the witness, since a jury may be sympathetic to a distraught mother – than evidence from the witness box.

24. I was satisfied that it is in the interests of the administration of justice for the witness to give evidence from a remote facility, and thus made the order sought.

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Decision last updated: 15 December 2023