R v CLARK (No 2) - [2022] SADC 38

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v CLARK (No 2)
[2022] SADC 38
Reasons for Ruling of his Honour Judge Cuthbertson
25 March 2022
CRIMINAL LAW - PROCEDURE
APPLICATION - AUDIO VISUAL LINK
The accused is charged on an Information dated 17 November 2017 with a total of 53 Counts of Theft, Aggravated Theft and Aggravated Dishonestly Dealing with Documents, alleged to have occurred between 2005 and 2009.
The Director has filed an application for two witnesses, Mr Mario Ferrarati-Ferrarone and his son, Mr Michele Ferrarati-Ferrarone (the complainants), to appear via Audio Visual link from Milan, Italy at the trial. The application relies on multiple grounds including that the witnesses reside in Italy, the older witness' medical conditions are parlous and the prospect of being exposed to the COVID virus places him at undue risk.
This is the second application filed by the Director in relation to hearing the witness' evidence via Audio Visual link, the first having been declined by a Judge of the District Court in a ruling dated 29 August 2019.
HELD: The first ruling applied the wrong test to the question of allowing evidence by audio visual link and there have been significant changes since his Honour made his ruling.
Application is granted.
Evidence Act 1929 (SA) S12AB, S13BA, S59II, S59E(4); Criminal Procedure Act 1921 (SA) S132(a), referred to.

R v CLARK (No 2)
[2022] SADC 38

This an application for the complainants in these proceedings to be permitted to give evidence in the trial on an audio visual link from Milan in Italy.
The defendant is charged with 54 Counts of Theft, Aggravated Theft and Aggravated Dishonestly Dealing with a Document. The offending relates to the misappropriation or theft of almost $2.4 million over a period between 2005 and 2009.
The principal prosecution witnesses are Mario Ferrarati Ferrarone and his son who are both Italian citizens resident in Italy (the complainants).
The complainants were agents for wool buyers in Italy. The wool purchased was generally from Australia.
The prosecution case is that they went into a joint venture with Elders Pty Ltd and engaged the defendant, an Adelaide accountant, to set up a trust arrangement to hold the funds being paid to them through the joint venture arrangement.
It is alleged that the defendant used the funds which in reality were held on trust for the complainants for his own purposes in breach of the trust.
The proceedings have had a lengthy history. They were initially instituted in South Australia back in November 2017.
Much of the history of the proceedings is set out in a Ruling I delivered on 2 July 2021 on an application for a Stay of Proceedings on the basis of the length of the delay in the proceedings leading to a trial. In that Ruling, I declined to order that the proceedings be stayed.
The prosecution now makes an application that the complainants be permitted to give their evidence on an audio visual link from Milan, Italy. The trial is presently listed for hearing in Adelaide on 5 April, 2022 and it is listed for about two to three weeks.
The defendant was first arraigned on 17 November, 2017.
On 29 August 2019 his Honour Judge Muscat, a judge of the District Court, on an application that the complainants be permitted to give evidence by audio visual link, made a Ruling prohibiting the adoption of such a course and requiring the witnesses to give evidence in Adelaide. (see Ruling 29 August 2019)
On 17 January 2022, the trial then being listed for hearing in April 2022, the DPP made a further application to have the evidence given by the two complainants heard by audio visual link from Milan, Italy.
The test for permitting the taking of evidence outside of the State is that it be “necessary or expedient” see s59E(1) of the Evidence Act, 1929.
S59E(4) provides that an authorised South Australian Court (in this case the District Court) may take evidence from a place outside the State by video link or any other form of telecommunication that the Court thinks appropriate in the circumstances.
In other words, putting the test in its least demanding form; where it is expedient to take evidence outside of the State, the Court may do so by video link if the Court thinks it appropriate in the circumstances. This test is not a particularly demanding one.
The defence submission is that I am bound by the ruling of Judge Muscat in this Court pursuant to s132 of the Criminal Procedure Act. That section provides that a determination made by a Judge of this Court is binding on me unless I consider that it “would not be in the interests of justice” for the determinations to be binding. (See s132(a) of the Act.)
“Expedient” is defined in Volume 1 of the New Shorter Oxford English Dictionary 1993 as “Advantageous (in general or to a definite purpose); fit, proper, suitable to the circumstances of the case or ‘useful or politic as opposed to right or just; advisable on practical rather than moral grounds’ or ‘a means of attaining an end;’
Section 132 of the Criminal Procedure Act provides as follows:
132 Determinations of court binding on trial judge
A determination or order made by a judge of the superior court in proceedings dealing with charges laid in an information is binding on a judge of the court presiding at the trial of the defendant, whether the trial is the first or a new trial following a stay of the proceedings, discontinuance of an earlier trial or an appeal, unless –
(a) The trial judge considers that it would not be in the interests of justice for the determination or order to be binding; or
(b) The determination or order is inconsistent with an order made on such an appeal.
It is necessary for me to determine whether I am bound by the Ruling of Judge Muscat.
I am entitled to consider myself not bound if, “it would not be in the interest of justice for the determination or order to be binding”. S132(a) Criminal Procedure Act.
One of the relevant factors is whether there has been demonstrable error by the first judge in his approach to the law or facts, see R v McCarthy, 2017 SASC 36 at para 19.
With respect, in my view the first Judge imposed a more severe test than was necessary in determining the initial application of the DPP. He has imposed a test that requires him to positively find before making the orders sought by the DPP that it is “in the interests of justice”.
The defence say that because the complainants have significant issues of credibility, cross-examination should occur in the presence of the jury.
There are no large issues of credit however that I can foresee because all of the transactions that are relevant are documented and no one has indicated to me that they are in dispute.
I also note that in this case the complainants did give oral evidence at the committal hearing giving the defence an opportunity to cross-examine in their presence.
Cross-examination is likely to be directed as to whether the complainant intended to create an express trust in his favour with the defendant as trustee, and whether in the event that an express trust had not been made out, whether the circumstances were such that in there was a resulting trust in the complainant’s favour.
I will direct the jury that they should be careful to observe the witnesses giving evidence on a TV screen and that that is not as good a process for observing them as if they were present in Court.
There are a number of salient changes since his Honour Judge Muscat gave his Ruling back in August, 2019.
The coming of the COVID virus greatly increased the risk that an elderly traveller like the complainant is subject to on travelling overseas. The complainant is now 82 years old. He lists his medical conditions as follows:
1.   Acute myocardial infarction
2.   Cochlear ischemia
3.   Meniere’s disease
4.   Type 2 diabetes
There is the need for the trial to be conducted as soon as possible given the long delays that have already occurred. I would not like to see any further delays. Also, there is the fact that giving evidence by video link is becoming increasingly frequent in the Courts in SA. In criminal trials it is permitted by the following legislative provisions:
-12AB Evidence Act 1929 - in a pre-trial special hearing, Courts may record the evidence of vulnerable witnesses. Vulnerable witnesses is defined as a witness under the age of 16, a witness who has a cognitive impairment or victims of certain proceedings where the circumstances put them at a disadvantage when they are not treated as a vulnerable witness;
-s13BA Evidence Act 1929 states that a Court may admit evidence of a witness in the form of an audio-visual record;
-59II Evidence Act 1929 – a recognised Court may take evidence or receive submissions via Audio Visual link from a person within South Australia; and
-S59IE Evidence Act 1929 – a South Australian Court may, on application by a party to proceedings, direct that evidence be taken or submissions made by audio, or audio visual link from a participating state.
These matters all combine, together with the fact that his Honour has applied a more stringent test than was necessary to lead me to the view that in the interests of justice the determination of Judge Muscat should not be binding on me.
I reconsider his Honour’s ruling and I rule that the complainant can give evidence by video linkup from Milan in Italy.
I make the same provisions for his son to give evidence from Italy as well based on the fact that his son would need to be there to assist him and that in the circumstances, it would be expedient that he too give evidence by video link-up from Italy.
My ruling is predicated on the basis that the video picture that the Court in Adelaide will have is suitably clear in picture and sound quality.
It is also predicated on the basis that sitting times in Adelaide will be convenient for the Court and the witnesses giving evidence in Italy.