R v Bell (No 9)
[2023] SADC 151
•23 October 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BELL (No 9)
[2023] SADC 151
Reasons for Ruling of his Honour Judge Stretton (ex tempore)
23 October 2023
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - EVIDENCE BY CLOSED-CIRCUIT TELEVISION
This is a contested application to adduce evidence by audio-visual link ('AVL'). Discussion of the circumstances in which such an application should be permitted or refused:
1. The application is governed by s 591Q of the Evidence Act (1929) SA.
2. Procedural requirements are set out in Rule 130.6 of the Joint Criminal Rules.
3. The test is whether it is in the interests of justice to do so, primarily whether the accused will nonetheless receive a fair trial, albeit not necessarily a perfect trial; R v Cox (2005) 165 A Crim R 326.
4. In part due to the recent COVID pandemic, AVL evidence is now entirely commonplace.
5. Advances in technology, equipment and court practice have resulted in AVL evidence fully replicating and in some instances, improving on physical attendances, allowing the accused's right to confront their accuser to be fully actualised. There should no longer be any presumption against witnesses appearing by AVL.
Held:
1. The quantity of potential documents that may need to be put to the three witnesses in question may result in some mild inconvenience if done by AVL rather than in person.
2. That mild inconvenience is outweighed by matters personal to two of the three witnesses, who will accordingly be permitted to give evidence by AVL.
3. The third witness will be required to attend.
Evidence Act 1929 (SA) ss 591Q, 591Q(2), 591Q(3), referred to.
R v Cox (2005) 165 A CRIM R 326, considered.
R v BELL (No 9)
[2023] SADC 151
This is a DPP application seeking orders to enable some seven witnesses to give evidence by audio-visual link (‘AVL’).[1]
[1] FDN 177.
There has been agreement between counsel in relation to four of those witnesses. The witness Gail O’Donnell is no longer to be called by the prosecution. Opposition to the three witnesses David Wheaton, Mervyn White and Nancy Withers giving evidence by AVL has been withdrawn.
That therefore leaves contested the application to call the evidence of three remaining witnesses, Ms Mott, Ms Strickland and Ms Unger by audio-visual link.
Section 59IQ of the Evidence Act provides that a court may, subject to the act and any relevant rules of court, receive evidence from a person elsewhere in the state not physically present in the courtroom, and do so by means of an audio-visual link.
Section 59IQ (2) and (3) provide that evidence taken by audio-visual link it will be in the same way and subject to the same checks and balances as if taken as live in the courtroom.
Joint Criminal Rule 130.6 applies when a witness is to give evidence by audio-visual link from a location remote from the courtroom. It deals with logistical arrangements, requiring the party who calls the witness to make arrangements with the sheriff's office for the witness to be brought to the relevant building and into the designated witness room, and for counsel who wish to ask questions of a witness relating to a document or thing, to give sufficient notice to court staff to allow appropriate arrangements to be made for the document or thing to be displayed electronically to the witness or taken to the remote location by court staff.
The practice is a now a common occurrence in the trial courts of this state. Often by a witness giving evidence from a witness suite nearby so as to not have to physically attend, as is often the case with complainants in sexual or domestic violence matters, through to where a witness is somewhere else in the state and for reasons of inconvenience, difficulty, travel or for some other reason is not or cannot be in the courtroom.
In those instances, if matters need to be put in cross-examination; then historically when everything was in hard copy, a folder in a sealed envelope or indeed several sealed envelopes could be taken to the location of the witness and at the direction of the cross-examiner opened at the point of time when the cross-examiner wished to put the document. Thereby, all the elements of surprise and strategic impact that the cross-examiner is entitled to retain were preserved.
Historically however, audio-visual links were often unreliable, with images conveyed to the courtroom on small television screens sitting on a box or trolley. There were several obvious disadvantages with evidence taken and sent under such conditions, both in terms of reliability and in terms of the court’s limited ability to closely observe a witness and consequently assess matters such as demeanour. Accordingly, that process was often a poor cousin compared to having the witness present in court.
All that has changed in recent years. The technology has now significantly advanced. Now, for example, in this courtroom we have dedicated and reliable audio-visual links to all the other courthouses in the state. Further, the screens in this courtroom are high definition and actually larger than the witness, so quite often the witness is portrayed physically larger on the screen than they would appear sitting in the witness box. So issues of reliability and of assessing demeanour have been largely, if not entirely, resolved.
The historically quoted and fundamentally important right in any criminal trial of an accused person to ‘confront their accuser’, once predicated on the accuser’s physical attendance, is now fully and effectively replicated by the technology.
The legal test is whether a witness be permitted to give evidence by AVL is whether it in the interests of justice that it be permitted to occur.
The issue is whether the defendant would nonetheless receive a fair trial although not necessarily a perfect trial; R v Cox (2005) 165 A Crim R 326.[2] Were a court to be of the view that were an audio-visual link to be used a defendant would not receive a fair trial, then I cannot presently imagine circumstances where an audio-visual link would be permitted.
[2] A decision of the Supreme Court of Victoria.
I refer to, without citing, the older authorities that are referenced by the author of the Criminal Law Service[3] concerning evidence to be taken outside the state to observe that the now-resolved historical disadvantages may well have been influential in those cases.
[3] Criminal Law South Australia, 2023 LexisNexis, Norman, P; Henchliffe, S.
I agree with the submissions of both counsel in this matter that the issue should be approached as the exercise of a broad discretion, based primarily on the interests of justice.
But that broad discretion should no longer be accompanied by any initial presumption or assumption that AVL will be a less reliable, effective or desirable mode of evidence presentation.
The first of the three witnesses is Ms Mott. She was a SEETA committee member whose evidence is relevant to several issues thereto. Her statement is some 16 pages and the documents to which, in at least so far as the Crown case is concerned are relevant to her giving evidence, comprise a further 77 pages.
The basis upon which an AVL link is sought in relation to Ms Mott is that she lives in Mount Gambier, her evidence should be able to be dealt with in a day and that it would be in essence no inconvenience to anyone have her by AVL, whereas otherwise there is the time and cost involved in her travelling from Mount Gambier to Adelaide and back.
The second witness is Ms Strickland. Ms Strickland was chair of SEETA at a relevant time and her evidence is said to relate to a number of SEETA documents, and some other issues to do with oversight and contact with Mr Bell. Her statement is 24 pages, and the prosecution refers to 15 SEETA records comprising some 94 pages as relevant to her evidence, together with a funding agreement of 12 pages. She also gives a supplementary two-page statement. Her relevant prosecution materials accordingly total 132 pages.
The basis on which an audio-visual link is sought in relation to Ms Strickland is that she is a carer for an unwell family member. Her husband has serious form of illness such that as presently advised he would need to travel with her to Adelaide because, whilst the illness is currently in remission, he could relapse without notice at any time and when that has happened in the past her help has been required immediately.
A further reason put by the prosecution for making an order ahead of trial that Ms Strickland be able to give evidence by AVL, is that she and her husband have a significant degree of anxiety about the future and whether the illness will suddenly resurface. That anxiety will also be a significant issue for them from now on should they not be able to be assured that they can remain in Mount Gambier.
The third witness is Ms Unger, who was treasurer of SEETA and was similarly closely involved in the initial stage of the events with which the charged offences are concerned. Her statement evidence comprises some 29 pages, with a further 96 pages of materials which the prosecution anticipate would be relevant to her evidence.
The defence has submitted that from the defence perspective her evidence is relevant beyond the first two counts concerning SEETA, in that the practices and procedures which occurred under SEETA carried through into the subsequent two organisations.
The basis upon which the prosecution asks Ms Unger to be permitted to give evidence by AVL is that she a serious knee condition. She has had one knee replacement and is waiting for another. Her condition is such that it is physically difficult and problematic for her to travel by air, in particular for her to enter and exit the compact type of aircraft used to fly from Adelaide to Mount Gambier. She therefore faces a lengthy road journey to Adelaide.
I have regard to all the defence submissions in opposition to the applications. The defence puts that there are potential difficulties in significant witnesses being examined and cross-examined via AVL; things might go wrong with the technology or there might be difficulties locating documents. In the case of Ms Mott, he emphasises that it is only convenience that is being proffered by the prosecution in support of her application to give evidence by AVL.
Mr Joyce indicates that the defence may well wish to put more documentation to the witnesses than the documents that have been foreshadowed by the prosecution. I have regard to all the arguments advanced by both counsel.
Advances in technology have made the giving of AVL evidence in this court just as reliable, and efficient and that, combined with COVID, have resulted in it being a commonplace event. Indeed, there are some advantages.
Analysis and conclusion
The court bears in mind the historical importance of an accused person being able to confront their accuser, traditionally in person. That historical tradition and the principal behind it must be remembered.
But the reality is that the traditional physical attendance of ‘the accuser’ is now entirely and sufficiently replicated by the new technology utilised.
From the long procedural history of the matter and the many rulings to date, the court has a fairly comprehensive understanding of both the prosecution case and the potential issues at trial, the latter as outlined by the defence over the course of their many applications.
Having regard to the overall case, the quantity of materials and the likely issues, as currently advised, the court’s view is that there would likely be no inconvenience or any problem in the evidence of each of these witnesses giving evidence by AVL, with simply the potential for some contingent limited inconvenience arising if something unanticipated were to crop up.
So in relation to Ms Mott, with the only basis advanced for her nonphysical attendance being moderate single-day intra-state travel, in circumstances where there is a potential for some possible contingent inconvenience to the defence, the balance favours her physical attendance.
Accordingly, I reject the AVL application in relation to Ms Mott and Ms Mott will be required to attend in person.
In relation to Ms Strickland, there are two matters which the court must carefully consider. Firstly, there is the actual risk that she may suddenly be required to be a carer for her husband, albeit he is currently in remission. Secondly, there is the issue of the anxiety that she will have if she is physically separated from him and unable to be available for him should he need assistance at short notice, or should he be required to travel to Adelaide with her, and indeed the anxiety she will have between now and then if she needs to contemplate that occurring. That could affect her degree of comfort in the witness box and be a source of potential distraction. For that reason, the balance of convenience comes down to allowing the application for her to give evidence by AVL so that she will not be as stressed or distracted, and therefore best placed to give as accurate evidence as practicable. That is in all parties’ interests.
In relation to Ms Unger, she would be unable to fly due to her knee condition with the alternative being a long vehicle trip each way by a person with knee problems. I do not know whether she would be required to take a bus, or a police officer would drive her, or what the situation is. At the end of the day requiring her to undertake that travel with the potential for discomfort raises the possibility of her having a level of anxiety and discomfort which could potentially distract her while giving evidence. Accordingly, the balance of convenience favours allowing the application for her to give evidence by AVL because that circumstance minimises the risk of potential discomfort and consequent distraction. That is in all parties’ interests.
Orders
Accordingly, the application for evidence to be given by AVL is allowed in the case of Ms Strickland and Ms Unger, but rejected in the case of Ms Mott.