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

---

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).

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cox & Ors (Ruling No 6)

Details

AGLC: R v Cox (No 6) [2005] VSC 364
Case: [2005] VSC 364
Decision Date: 14 September 2005

CaseChat Overview and Summary

In the matter of R v Cox & Ors, the court was presented with an application by the prosecution seeking an order for witnesses to give evidence via video link. The application was brought under Section 42E of the Evidence Act 1958, which pertains to the circumstances under which a witness may give evidence via video link. The primary issue for the court was to determine whether the application should be granted, considering the risk of harm to the witnesses and the need for court security. Additionally, the prosecution applied for a witness to give evidence in a closed court under Section 18(1)(a) of the Supreme Court Act 1986.

The court was tasked with assessing the specific circumstances of each witness to decide if the application should proceed. It considered the potential harm to the witnesses if they were to testify in person, including the risk of physical and psychological harm. The court also evaluated the need for court security to ensure the safety of the witnesses and the integrity of the proceedings. The prosecution argued that the witnesses' safety could be adequately managed through the use of video link technology, while the defence raised concerns about the potential for reduced scrutiny and the impact on the fairness of the trial.

The court ultimately concluded that the application should be granted, allowing the witnesses to give evidence via video link. The court found that the risk of harm to the witnesses was sufficiently high to warrant this measure, and that court security could be maintained effectively through the use of video technology. The court also ruled that the application for one witness to give evidence in a closed court was justified, given the specific circumstances of that witness. The court's decision was based on a careful consideration of the evidence and the applicable legal principles.

The final orders of the court included an order for the witnesses to give evidence via video link, except for one witness who was permitted to give evidence in a closed court. The court also directed that appropriate measures be taken to ensure the security of the court and the protection of the witnesses. This decision provides guidance for future cases involving similar applications and highlights the importance of balancing the safety of witnesses with the principles of open justice.

Orders