JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2004 to 24 March 2004
DATE OF RULING:	3 March 2004
CASE MAY BE CITED AS:	R v Goldman
MEDIUM NEUTRAL CITATION:	[2004] VSC 165

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Ruling No. 1

Application for witness to give evidence via video link – Section 42E Evidence Act 1958 – Adequacy of video link evidence – Right of accused to confront witness – Court security – Risk of harm to witness.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kayser	Ms K. Robertson, Solicitor for Public Prosecutions
For the Accused	Mr P. Chadwick	Slades & Parsons

HIS HONOUR:

The accused, Michael Goldman, is charged with the attempted murder of one, Alexander Kudryavstev, on 10 July 2002. The Crown has sought an order that Mr Kudryavstev the principal witness for the prosecution, be permitted to give evidence by video link pursuant to s. 42E Evidence Act 1958 (hereafter “the Act”). The application is opposed by the accused.

Counsel for the accused informed me during the course of the application that it will not be contested that the accused shot Mr Kudryavstev. I do not apprehend that self-defence will be raised, but Mr Kudryavstev’s account as to precisely how he came to be shot will be in issue as will his evidence of the accused's motive for shooting him. The accused and two co-accused, Dima Mendelis and Slavidir Moroz, face a presentment containing multiple counts of burglary and theft in the County Court. Alexander Kudryavstev is the principal witness upon whom the Crown relies in the County Court proceedings.

I heard evidence in support of this application and received submissions in closed court upon being satisfied that it was necessary to do so in order not to prejudice the administration of justice.[1] I shall not refer to the detail of such evidence or submissions but it is evident that some of the evidence that I received is likely to be repeated during the course of the trial.
[1]See s.19(b) Supreme Court Act 1986.

Background

It will be the Crown case that Alexander Kudryavstev, together with the accused and Dima Mendelis and Slavidir Moroz, were involved in multiple burglaries and thefts in the south-eastern area of Melbourne. On 5 July 2002, Mr Kudryavstev was arrested in relation to these matters. Shortly thereafter he commenced to co-operate with police investigators providing them with evidence against the accused, Mendelis and Moroz. The Crown alleges that on 10 July 2002 the accused attempted to kill Mr Kudryavstev to prevent him from providing further information or testifying against him or Mendelis or Moroz.

Evidence was called in the course of the closed hearing to support the opinion of each of the three police officers who testified that Mr Kudryavstev's safety remains at risk. Whilst I have formed no concluded view about the veracity of such allegations, I am…

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 Goldman

Details

AGLC: R v Goldman [2004] VSC 165
Case: [2004] VSC 165
Decision Date: 3 March 2004

CaseChat Overview and Summary

The case of R v Goldman involved the accused, Mr Goldman, seeking an order for a witness to give evidence via a video link. This request was pursuant to section 42E of the Evidence Act 1958. The application was made to the court to ensure the witness could testify without the risk of harm, which had been a concern in the past. The dispute centred around the adequacy of the video link evidence and the accused's right to confront the witness in person. The case was heard in the Supreme Court of Victoria, which had to balance these rights against the court's duty to ensure security and the potential harm to the witness.

The court had to decide whether the video link would be adequate for the witness to give their evidence without compromising the fairness of the trial. This involved assessing whether the accused's right to confront the witness was adequately protected and whether the risk of harm to the witness was sufficiently mitigated by the use of a video link. The court also had to consider the implications for the witness's safety and the integrity of the proceedings.

In ruling on the application, the court considered the provisions of section 42E of the Evidence Act 1958, which allows for a witness to give evidence via video link under certain conditions. The court found that the video link would provide an adequate means for the witness to give their evidence while ensuring their safety. The court concluded that the accused's right to confront the witness could be adequately met through the video link, and the risk of harm to the witness was sufficiently mitigated. The court granted the application, allowing the witness to give their evidence via a video link.

The court ordered that the witness would give their evidence via a video link as per the terms set out in the ruling. This decision was made to ensure the safety of the witness and to allow the trial to proceed with the necessary safeguards in place. The ruling emphasised the importance of balancing the rights of the accused and the witness while maintaining the integrity of the judicial process.

Orders