R v Cox & Ors (Ruling No 6)
[2005] VSC 364
•14 September 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1453 of 2003
| THE QUEEN |
| v |
| STEPHEN COX, GLENN SADLER, IAN FERGUSON AND JOANNE FERGUSON |
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JUDGE: | KAYE J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 September 2005 | |
DATE OF RULING: | 14 September 2005 | |
CASE MAY BE CITED AS: | R v Cox and ors (Ruling No. 6) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 364 | |
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CRIMINAL LAW – Application by prosecution for witnesses to give evidence via video link – Section 42E Evidence Act 1958 – Considerations applicable – Risk of harm to witnesses – Court security – Application for witness to give evidence in closed court – Supreme Court Act 1986 Section 18(1)(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Tovey, Q.C. with Mr D. Brown | Office of Public Prosecutions |
| For the Defendant Cox | Mr B. Young | Tony Hargreaves & Partners |
| For the Defendant Sadler | Mr G.A. Georgiou with Ms H. Spowart | Victoria Legal Aid |
| For the Defendant Ian Ferguson | Mr Mr D. O’Doherty with Ms A. Marjanovic | C. Marshall & Associates |
| For the Defendant Joanne Ferguson | Ms M. Tittensor | Theo Magazis & Associates |
HIS HONOUR:
The accused Stephen Cox, Glenn Sadler and Ian Ferguson have been charged with conspiring together and with others to traffick heroin in a quantity not less than the commercial quantity applicable to that drug of dependence contrary to s.79 of the Drugs, Poisons and Controlled Substances Act 1981. Ian Ferguson and the accused Joanne Ferguson have also been jointly charged with one count of money laundering contrary to s.122 of the Confiscation Act 1997. Sadler and Cox have also been charged on separate counts of money laundering contrary to s.122 of the Confiscation Act.
On 21 July 2005 I ruled[1] that Cox and Sadler be tried separately to Ian Ferguson on the conspiracy count. On 22 July 2005 I ruled[2] that the trial of the count of conspiracy against Ian Ferguson, and the trial of the count of money laundering against Ian and Joanne Ferguson, is to proceed first. Subsequent to that trial, Cox and Sadler are to be tried on the conspiracy count and on the counts of money laundering against each of them.
[1]R v Cox and ors (Ruling No. 4) [2005] VSC 225.
[2]R v Cox and ors (Ruling No. 5) [2005] VSC 262.
The Crown has applied for an order in respect of the forthcoming trials that the evidence of three witnesses, namely, Duy Le, Kenneth Lai and Loan Tran, be given via video link from a remote location pursuant to s.42E of the Evidence Act. That course is opposed by the accused, who submit that the witnesses should be required to give evidence in person before the jury. There is an outstanding issue whether the evidence of Kenneth Lai is admissible on the trial of Ian Ferguson. However for the purposes of determining the current application I shall assume that the evidence of Kenneth Lai is admissible against Ian Ferguson as well as against Cox and Sadler. The Crown has also applied for an order under s.18(1)(a) of the Supreme Court Act that the evidence of Duy Le be heard in closed court.
The charges against the accused arise out of investigations undertaken by the Ceja Task Force which was formed as a result of allegations of corrupt activity by members of the Victoria Police Drug Squad. The first three accused, Cox, Sadler and Ian Ferguson, were each members of the Victoria Police Drug Squad. At that time Duy Le and Lai were both registered informers of the Drug Squad. Cox and Sadler were the registered handlers and controllers of Duy Le. Sadler was the registered handler and controller of Lai. Loan Tran was the girlfriend of Duy Le.
The application by the Crown is based on a concern for the security of the three witnesses and other court users, should the witnesses be required to attend at court and give their evidence in the court itself. In particular the Crown is concerned for the safety of Duy Le and Lai arising from the circumstance that, as informers to the Drug Squad, they provided information concerning other drug traffickers. Additionally, the application under s.42E is based upon a concern by the Crown for the safety of the three witnesses arising from their status and importance as witnesses in the two forthcoming trials.
Section 42E of the Evidence Act
Section 42E(1) of the Evidence Act 1958 provides that a court may on its own initiative, or on the application of a party to the legal proceeding, direct that a person may appear before, or give evidence or make a submission to, the Court by audio visual link or audio link from any place within or outside Victoria, or outside Australia, that is outside the court room or other place where the court is sitting. Section 42E(3) provides that the Court may at any time in the course of a proceeding vary or revoke a direction made under sub-s.(1). Section 42E(2) provides that a court must not make a direction under sub-s.(1) unless it is satisfied that the technical requirements specified in s.42G are met or can be reasonably met in the case of the particular link. Section 42G(1) provides that the technical requirements for an audio visual link are that both the courtroom and the point at which the witness gives evidence are equipped with facilities which enable all appropriate persons at the court point to see and hear the person giving the evidence, and which enable all appropriate persons at the point at which the evidence is given to see and hear all appropriate persons in the court.
Section 42E of the Evidence Act has been applied in a number of recent cases, including R v Kim,[3] R v Weiss,[4] R v Goldman,[5] and R v Strawhorn.[6] Those cases have discussed and identified the relevant principles in an application under that section. Those principles may be summarised as follows for the purposes of the present application:
[3](1998) 104 A Crim R 233.
[4][2002] VSC 15.
[5][2004] VSC 165.
[6][2004] VSC 415.
(1)The question for the court is whether it is in the interests of justice that an order be made under s.42E.[7]
(2)In considering that question, the right of the accused to a fair trial is paramount.[8]
(3)It does not follow that, because the accused may sustain some forensic disadvantage by reason of an order under s.42E, such an order should not be made.[9]. As Brooking J observed in a different context in Jarvie v Magistrates’ Court of Victoria,[10] a “ … fair trial does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused.”
(4)The right of an accused to confront, in person, those who testify against him or her is a fundamental right in our criminal justice system.[11]
(5)However, as Redlich J observed in Goldman,[12] that right, while fundamental, is not an absolute right at common law. Section 42E is a further qualification of that right in appropriate circumstances.
(6)The question whether it is in the interests of justice to make an order under s.42E must be determined by balancing, on the one hand, the interests of the accused, and, on the other hand, the public interest in the ability of witnesses to give evidence in significant criminal trials without thereby occasioning danger to themselves or to other members of the community.[13]
(7)Nonetheless a court should not make an order under s.42E where to do so would unduly prejudice the right of an accused person to a fair trial. For, as I have observed, that right must be paramount.[14]
[7]R v Kim (above) at 234; R v Goldman (above) at [21].
[8]DPP v Weiss (above) at [7].
[9]R v Strawhorn (above) at [3]; R v Goldman (above) at [29]; compare Jago v District Court of New South Wales (1989) 168 CLR 23.
[10][1995] 1 VR 84 at 90.
[11]R v Goldman (above) at [18]; R v Ngo (2001) NSWSC 339 at para 10.
[12]At [23] to [25].
[13]R v Goldman at [29].
[14]R v Weiss at [7]; cf. R v Lyne [VSCA] 118 at [31] per Eames JA; R v Knigge [2003] 6 VR 181 at [30] per Winneke P.
The recent rulngs in R v Goldman and R v Strawhorn are useful illustrations of the application of those principles where orders were sought under s.42E that a witness be able to give evidence without thereby endangering the safety of the witness or other members of the public. In each case the judge made an order under s.42E in respect of important Crown witnesses after assessing the degree of risk to the safety of the witnesses and the public, and weighing that risk against any potential forensic disadvantage to the accused which might arise from the witness giving evidence via audio-visual link.
Duy Le
The Crown called three witnesses in support of the application under s.42E of the Evidence Act. The first witness was Detective Senior Sergeant Rodger. Mr Rodger has been attached to the Ceja Task Force since July 2002. He gave evidence as to his assessment of the level of risk which he considered applied to each of the three witnesses should they be required to give evidence in court in the forthcoming trials. Mr Rodger stated that Duy Le had, as an informer to the Drug Squad, provided evidence concerning other drug traffickers. Shortly after his arrest by the Ceja Task Force, Duy Le was entered into the National Witness Protection Scheme. That step was taken because Ceja had assessed that Duy Le constituted a very high level risk if he did not enter that scheme. That risk was considered to arise both from the nature of the evidence which he was to give as a pivotal witness in the forthcoming trials, and also because, as an informer to the Drug Squad, he had provided information concerning others involved in drug trafficking. Mr Rodger stated that Ceja still assessed the risk attaching to the safety of Duy Le as “extremely high”.
Andrew Kevin Brown, a Federal Agent of the Australian Federal Police, also gave evidence. Mr Brown is currently stationed in the National Witness Protection Scheme. Mr Brown stated that, after Ceja proposed the entry of Duy Le into the witness protection scheme, that organisation conducted its own risk assessment, as a result of which Duy Le was considered to be a high risk in respect of his own safety. Mr Brown further stated that three separate assessments have been conducted in respect of Duy Le, and those analyses have resulted in Duy Le being rated, on each occasion, as a high risk.
The evidence, particularly of Mr Rodger, concerning the level of risk faced by Duy Le was challenged in cross‑examination. It does appear that the risk faced by Duy Le in respect of at least some of the persons in respect of whom he provided information to the Drug Squad is of little consequence. Nonetheless, and particularly in relation to one person in respect of whom Duy Le has provided information, I do accept that there is a residual risk of some consequence.
In an application such as this, the Court must form its own independent view as to the level of risk to a witness should that witness be required to give evidence in court. Nonetheless, appropriate weight must be given to the evidence of two experienced police officers, who have been responsible for assessing the level of risk faced by Duy Le, and who possess significant information and experience in making such an assessment. Certainly, I am prepared to accept that it is Mr Rodger’s genuine assessment that Duy Le faces a very high risk should he be required to give evidence in court. I also accept that that assessment has been made by Mr Rodger after appropriate consideration by him of the question, and bearing in mind Mr Rodger’s detailed knowledge of the risks which are faced by Duy Le. In addition, I consider that I should give proper weight to the evidence of Mr Brown concerning the risk assessment conducted by the National Witness Protection Scheme in respect of Duy Le. It is sufficient for me to conclude that, based on the evidence of Mr Rodger and Mr Brown, and based on the reasons proffered by Mr Rodger for his assessment, I accept that Duy Le does face a high risk of danger to his safety should he be required to give evidence in court.
I also heard evidence from Acting Senior Sergeant Robert Hodge, a member of the Protective Services Unit, who is the officer in charge of the Law Courts Deployment responsible for the security of law courts throughout Victoria. It is unnecessary and undesirable that I detail the substance of Mr Hodge’s evidence in the course of these reasons. However his evidence, which I accept, makes it clear that, because of the inadequacies and difficulties of security in the Supreme Court building, it would not be possible to adequately protect the safety of a high risk witness without going to extreme steps which, in the circumstances, would be wholly impractical. Mr Hodge has a detailed and intimate understanding of the security requirements of the Supreme Court building complex, and as to the inadequacies and weaknesses involved in the current security structure of the building. Based on his evidence I accept that if a high risk witness such as Duy Le were required to give evidence in court, then it would not be possible to provide a suitable guarantee of safety for such a witness, short of instituting the extreme steps postulated by Mr Hodge, which, self‑evidently, are quite impractical.
Thus, based on the above evidence, I consider that there would be a significant risk to the safety and well‑being of Duy Le should he be required to attend court and give evidence. The immediate safety of Duy Le could not be adequately protected during his entry to the Court, while he was in the Court, and during his departure from the Court. The requirement that Duy Le give evidence in court would also have substantial potential to undermine the steps which have been taken to protect and conceal the current identity and location of Duy Le. In particular, as stated by Mr Brown, if Duy Le gave evidence, there would be significant opportunity available to other persons to observe Duy Le’s current physical appearance. There would also be some opportunity for such persons to also, possibly, trace his current place of residence.
It was submitted on behalf of each of the accused that Duy Le constitutes the key Crown witness in each of the two forthcoming trials. It is expected that a wholesale attack will be made on the credibility of Duy Le. Thus the assessment of his demeanour in the witness box will be crucial to an appropriate appreciation of the credibility of Duy Le by the jury. It was submitted that such an assessment would be compromised if Duy Le were to give evidence via video link. Further it was submitted that cross‑examination via video link is not optimal, and can involve difficulties, particularly where counsel seeks to cross-examine the witness on documents and other materials.
I accept that it is preferable for a witness to give evidence in court where possible. As I have already stated, the accused has a basic right to confront his or her accuser. Where the witness gives evidence in person, the jury is able to see the witness’s appearance in three dimensions, rather than in two dimensions if evidence is given via video link. I also accept that it is somewhat easier for counsel to cross‑examine a witness who is present in court, rather than to cross‑examine a witness who gives evidence on video link.
On the other hand, those disadvantages should not be overstated. It is anticipated that Duy Le will give evidence over a number of days. During that time the jury will have adequate opportunity to observe his demeanour and to make an appropriate assessment of it. From my perusal of the depositions, a number of matters will be put to Duy Le as to his credibility which will not merely involve an assessment by the jury of his demeanour. For example, I expect that he will be heavily cross‑examined concerning his previous drug trafficking activities, concerning previous inconsistent statements made by him, and concerning the benefits derived by him from agreeing to act as an informer in the present case. Certainly Duy Le’s demeanour in answering those matters, and other matters in cross‑examination, is important in a jury’s assessment of his overall credibility. However, as I stated, Duy Le will face cross‑examination over a substantial period of time in each trial. I consider that a jury would have sufficient opportunity to assess his demeanour and his manner of giving evidence during that time, even if he were to give evidence via video link.
Thus I do accept that it is preferable were Duy Le to give evidence directly in court rather than via video link. However I do not consider that the potential disadvantages to the accused, should he give evidence via video link, would be such as to deprive any of the accused of a fair trial. On the other hand, as I have already found, I accept that there is a significant and high level of risk to the safety of Duy Le, should he be required to give evidence in court. In addition, because of that risk, I also accept that there is a collateral risk to the safety of other users of the Supreme Court complex should Duy Le be required to give evidence in court. Bearing all those matters in mind, I consider that it is appropriate to accede to the Crown’s application in respect of Duy Le, and to direct that Duy Le may give evidence to the Court in each of the two trials by audio-visual link. However, if at any stage during the proceeding it appears that such a process is prejudicial to the right of the accused to a fair trial, then s.42E(3) provides that I may, either of my own motion or on an application by a party, vary or revoke the direction which I have given.
Kenneth Lai
Mr Rodger, in his evidence, stated that Kenneth Lai had provided evidence concerning other offenders, and one in particular, who is currently in custody. That person himself had been involved in quite substantial drug trafficking. Lai is not a participant in the National Witness Protection Scheme. It does not appear that it has been proposed that he enter that scheme. Mr Rodger was of the view that Lai is at risk should he be required to come to court and give evidence. First, he is at physical risk in coming to court. In addition, if he attended court, others would have the opportunity to identify him.
The level of risk faced by Mr Lai must be assessed in light of a number of matters which were elicited in cross-examination. Each of the accused have been on bail for over two years. During that time Lai has been living within the community. He has not taken any steps to change his name. There is no evidence that Lai has been threatened or suffered any violence hitherto. The offender in respect of whom Lai gave information is currently serving a lengthy term of imprisonment. Lai has recently twice appeared in the Melbourne Magistrates’ Court on criminal charges. On each occasion he has been convicted and sentenced. The offences in respect of which he has been convicted reveal that he is still involved in drug trafficking, and that he himself has not taken any steps to maintain a low profile. On his last appearance in the Melbourne Magistrates’ Court he was placed on a Community Based Order. The reporting and supervision conditions of that order require the attendance of Lai at particular locations at particular times. Those who would wish to inflict harm on Lai have had ample opportunity to do so without accessing him in court. Notwithstanding the fact that Lai has been required to keep a number of appointments attached to his Community Based Order, he has not come to any harm.
All of those matters combine to lead to the conclusion that, while Lai may face some degree of risk in coming to court, that risk is not particularly substantial based on the evidence which has been put before me. In my view the amount of potential risk to Lai is not sufficient to warrant the making of a direction under s.42E(1) of the Evidence Act in respect of Lai’s evidence. In particular, I must take into account the rights of the accused in accordance with the principles which I have already summarised above. Bearing in mind that it is desirable that witnesses give evidence in court directly if possible, I do not consider that the amount of risk established by the evidence is sufficient to outweigh the considerations which require that Lai give his evidence in court. I therefore hold that the Crown has failed to establish an appropriate basis for a direction under s.42E in respect to the evidence of Lai.
Loan Tran
Mr Rodger also gave evidence concerning the level of risk to Loan Tran should she be required to give evidence in court. Mr Rodger considers that she faces a risk to her safety, based on her importance as a Crown witness in the forthcoming trials. On the basis of that assessment, the Ceja Task Force offered to Loan Tran that she be a participant in the National Witness Protection Scheme. However, she declined that offer. Mr Rodger confirmed that the risk which he apprehended to Loan Tran is based solely on her importance as a witness in this case.
I accept that Mr Rodger is genuine in his assessment as to the risk to Loan Tran. On the other hand the level of that risk must be evaluated by me in light of matters which emerged in cross‑examination. Loan Tran has been living and working in the community. She continued to work with the same employer for at least one year after the accused were granted bail. There is no evidence that she has suffered any threat to her safety or well-being during the period of more than two years in which the accused have all been on bail.
Based on those matters, while I accept that Loan Tran does face some risk she is required to attend in court to give evidence, nonetheless I do not consider that that risk is particularly significant. The evidence before me reveals that, if anyone wished to cause harm to Ms Tran, they have had ample opportunity to do so hitherto. I do not consider that the risk faced by Loan Tran is sufficient to justify the making of an order under s.42E for her to give her evidence via audio-visual link and I decline to do so.
Conclusions concerning s.42E
Thus, for the reasons I have set out above, it is appropriate that I make a direction under s.42E(1) of the Evidence Act that Duy Le give his evidence via audio‑visual link. However on the evidence before me I do not consider that the Crown has established an appropriate basis for the witnesses Loan Tran and Kenneth Lai to give their evidence via audio‑visual link. Thus at the forthcoming trial of Ian Ferguson and Joanne Ferguson, Duy Le will give his evidence via audio‑visual link, but Kenneth Lai and Loan Tran will be required to attend at court to give their evidence. Further as I have already stated, if during that trial, or the subsequent trial of Cox and Sadler, it appears that the position of the accused is unfairly compromised by Duy Le giving his evidence by audio‑visual link, I have the power to vary or rescind the order which I have just made.
Section 42E(2) provides that a court must not make a direction under s.42E(1) unless the court is satisfied that the technical requirements specified in s.42G are met or can reasonably be met. Section 42G(1) provides that the technical requirements for an audio‑visual link are that both the court and the point at which the witness gives evidence must be equipped with facilities which enable those in the court to hear and see the witness, and which enable the witness to hear and see “appropriate persons” in the court. The court in which the trial is to proceed has adequate facilities which may be used for the purposes of an audio‑visual link. However, because of the particular circumstances of Duy Le, it will not be possible to be satisfied that the point at which the witness is to give evidence has sufficient facilities to enable that person to hear and see appropriate persons in the court. I do not understand that that will be a technical difficulty. Nonetheless I am not in the position to reach the appropriate state of satisfaction required under s.42G. On or shortly before the date on which Duy Le is to give his evidence, a test will be conducted of the facilities in the presence of counsel, to enable me to reach the appropriate state of satisfaction required by s.42G. I shall then be in a position to make an appropriate direction in respect of Duy Le’s evidence under s.42E.
In the course of argument, counsel for both Cox and Sadler told me that if I was to give a direction under s.42E in respect of one witness, then I should give that direction in respect of all three witnesses. As I understood it, there is a concern by each of those accused that no distinction should be made between the evidence to be given by the three witnesses.
The trial of Ian Ferguson and Joanne Ferguson is to proceed first. I have directed that the evidence of Duy Le, in each trial, be given via audio‑visual link. In the circumstances, it is appropriate that I simply note the submission made on behalf of Sadler and Cox that, if one witness gives evidence via audio‑visual link, all three witnesses should, rather than rule on it at this stage. In the circumstances, counsel may wish to consider their position in respect to such a submission after the completion of the trial of Ian Ferguson and Joanne Ferguson.
Application by Crown for closed court
The Crown has also applied for an order that the evidence of Duy Le be given in closed court pursuant to s.18(1)(a) of the Supreme Court Act. That application was based on the evidence of Mr Brown. In his evidence Mr Brown stated that, in general terms, participants in the scheme undergo re‑identification and relocation to enable them to be reintegrated safely into society. Mr Brown stated if Duy Le were to give evidence on audio‑visual link, and if members of the public were able to view that evidence, members of the public would have access to his current image which might thereby prejudice his safe re‑integration into society.
It has long been a central tenet of our common law system that justice be administered in open court. That rule has been aptly described as an “inveterate” rule of our system of justice.[15] A court will only depart from that rule where its observance would frustrate the administration of justice, or where such a departure is necessary for substantial reasons.[16] In Re Applications by Federal Commissioner of Police (Vic) for Leave to Appeal,[17] the Court of Appeal observed that where an order for a closed court is sought based on considerations other than the protection of the administration of justice, the court should be especially astute not to derogate from the general principle that trials be held in open court. Thus the court stated:[18]
“On whatever basis the matter is approached, such orders can only be made in circumstances where the ends of justice require the concealment of some part of the process. Where orders for suppression are authorised only by statute, the provisions ought ordinarily to be strictly construed and utilised only when clearly necessary. One must be more cautious, therefore, when considering a power to preclude publication which is not founded on the need to avoid prejudicing the administration of justice. Even in claims seeking to protect the administration of justice, whether they be dependent on a statutory power or not, there will ordinarily be competing public policy considerations, especially where the order sought is intended to ensure the fair trial of an accused, whether in the instant trial or in some other trial. On the other hand, where the order sought is founded on other considerations, one must be particularly careful not to deny the general principle of an open trial.”
[15]See Scott v Scott (1913) AC 417 at 445, per Earl Loreburn; see also John Fairfax & Sons Limited v Police Tribunal of New South Wales and anor (1986) 5 NSWLR 465 at 476 (per McHugh JA); John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 at 140 (per Kirby P); Raybos Australia Pty Ltd and anor v Jones (1985) 2 NSWLR 47 at 50-3 (per Kirby P); Margaritis v Collins (1989) BC8900593.
[16]Scott v Scott (above) at 437-8 (per Viscount Haldane LC).
[17][2004] 9 VR 267.
[18]At p.288, para [30].
The two forthcoming trials are significant criminal trials. They concern serious allegations concerning the activities of members of the Victorian Drug Squad. It is, I consider, most undesirable that an important part of such proceedings be heard in closed court, particularly when they involve the evidence of a central witness, unless there is a strong necessity for that to occur.
If Duy Le were required to give evidence in person in the present case, then I accept that there would be a significant risk that his current identity, and even his current location, might be thereby revealed to persons who wished to ascertain them. In those circumstances Duy Le would be able to be observed going to court, while he was in court, and while he was leaving court. Any person who wished to do so could observe Duy Le in three dimensional form, and make observations, not only about his face and upper body, but about his posture, gait, and physical build. I accept that if Duy Le gave evidence by audio‑visual link in open court, persons who wished to familiarise themselves with his facial appearance would be able to do so. However, Mr Brown did accept that the risk of any such recognition would, at least to some extent, be reduced by the witness giving evidence via audio‑visual link, instead of giving evidence in court.
I do accept the evidence of Mr Brown that if I were not to close the court in relation to the evidence of Duy Le, then there would be some risk that persons who wished to familiarise themselves with his current facial features would be able to do so, even though he were to give evidence via audio‑visual link. However, I must weigh that risk against the high public interest in cases being heard in open court, particularly where they involve the evidence of a critical Crown witness in a serious criminal prosecution. In those circumstances I consider that, while there is some risk of the type adverted to by Mr Brown, nonetheless that risk is not of sufficient moment to justify an order that the evidence of Duy Le be given in closed court. I do however accede to the application of the Crown for an order pursuant to s.18 of the Supreme Court Act 1986 prohibiting the publication of any evidence, information, image by way of photographs, video sketch, digital or other process which identifies or may lead to the identification of the witnesses Duy Le or Kenneth Lai, or to the publication of any evidence which might reveal the current location or place of residence of Duy Le or Kenneth Lai.
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