R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 11)

[2020] NSWSC 382

Supreme Court

New South Wales

Medium Neutral Citation:	R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 11) [2020] NSWSC 382
Hearing dates:	6 April 2020
Date of orders:	06 April 2020
Decision date:	08 April 2020
Jurisdiction:	Common Law
Before:	Fullerton J
Decision:	Trial adjourned to 31 August 2020.
Catchwords:	PRACTICE AND PROCEDURE – application to adjourn proceedings – virtual courtroom
Legislation Cited:	COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) Evidence (Audio and Audio Visual Links) Act 1998 (NSW) Public Health Act 2010 (NSW) Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW)
Category:	Procedural and other rulings
Parties:	The Crown Ian Michael Macdonald (Accused) Edward Moses Obeid (Accused) Moses Edward Obeid (Accused)
Representation:	Counsel: S Callan / R Rodger (Crown) J Martin (Accused Macdonald) MJ Neil QC / M Kalyk (Accused Moses Obeid)   Solicitors: Solicitor for Public Prosecutions (Crown) M Bowe (Accused Edward Obeid) Murphy’s Lawyers Inc (Accused Moses Obeid)
File Number(s):	2015/212851; 2015/212910; 2015/214251

Judgment

1. HER HONOUR: At the conclusion of proceedings on Monday 16 March 2010, after the joint trial of the accused had been in progress for almost five weeks, the trial was adjourned to 27 March 2020 for mention responsive to the public health concerns that existed at that time by reason of the outbreak of the COVID-19 pandemic. The accused were excused from attending on that occasion. There was no opposition from any of the parties to that course.

2. A Crown witness, Mr Larkings, was in the course of giving his evidence via an AVL link when the proceedings adjourned. That order was made on grounds entirely unrelated to the pandemic.

3. In the interim, on 23 March 2020, the Chief Justice directed that, consistent with what was by that time public health advice, effective from 24 March 2020 there would be no physical appearances in any matters until further notice, save in exceptional circumstances and with his leave or, in common law matters, with the leave of the Chief Judge at Common Law.

4. On 24 March 2020 at 3:15pm, the Court convened for a “test run” of the facilities for the convening of the trial in a “virtual courtroom” via a web link to Court 9D with a view to the joint trial resuming on 30 March 2020. A fact sheet had been published by the Court to assist practitioners to navigate the virtual courtroom environment. The parties were encouraged to follow the guide. The accused were invited to participate in the “test run” but were not obliged to do so. They chose not to participate leaving the assessment of the utility of the AVL facilities to their counsel.

5. In the course of the “test run” it became clear that the system did not easily cope with the appearance of all six counsel, and each of the solicitors instructing Ms Callan and Ms Rodger for the Crown, and the solicitors instructing Mr Neil QC, counsel for Moses Obeid, and Ms Francis, counsel for Edward Obeid. Mr Martin of Counsel appears for Mr Macdonald without an instructing solicitor. The Court also expressed concerns as to how it was envisaged that witnesses would give evidence via the AVL and be cross-examined where the Court Book exceeds 7,500 pages and with an additional 79 documents marked for identification. The parties agreed to continue to work with the Court to endeavour to resolve the numerous technological challenges involved in the trial continuing at this time.

6. The parties were also informed during the “test run” of my view that if it became apparent that a fair trial could not be conducted without the personal appearance of at least the legal representatives for the accused, even if witnesses and the accused might appear via AVL, then the trial would adjourn, part heard, to resume later in the year. The proceedings were adjourned to 27 March 2020 at 10am.

7. On Wednesday 25 March 2020, the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) was assented to. Relevantly, so far as the trial is concerned, that Act amended the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) by allowing the Court to direct that witnesses and the accused, attend proceedings by AVL.

8. By a notice of motion filed 26 March 2020 and served by email in advance of the proceeding on 27 March 2020, the Crown applied for orders pursuant to ss 22C(3) and (4) of the Evidence (Audio and Audio Visual Links) Act that the appearance of the following persons take place by audio-visual link from a variety of remote locations:

1. The legal representatives for the Crown;

2. The accused Ian Macdonald;

3. The accused Edward Obeid;

4. The accused Moses Obeid;

5. The legal representatives for the accused listed at (b)-(d) above; and

6. The witnesses to be called by the Crown.

9. That application was supported by detailed submissions which proposed, as an alternative to the full complement of the orders sought, that the trial proceed under a grant of leave from the Chief Justice, allowing for counsel and solicitors to appear in a restructured courtroom, to ensure social distancing between all counsel in accordance with the then current health advice, but with witnesses and the accused appearing remotely. Mr Neil filed submissions endorsing the Crown’s proposal.

10. At 10am on 27 March 2020, the Court was not able to convene the trial as none of the parties were able to connect to the virtual courtroom.

11. Proceedings were adjourned to 2pm. At that time Ms Callan appeared in the virtual courtroom with Ms Rodger from Ms Rodger’s home. I was informed that they proposed to appear from that location when the trial resumed. Mr Neil appeared by the same means, with Mr Kalyk, from his chambers in the city. Moses Obeid appeared from his home. Ms Francis appeared from her home and Mr Edward Obeid from his. Mr Martin appeared from his chambers, also in the city, with Mr Macdonald in attendance.

12. On repeated occasions throughout the proceedings that afternoon one or more of the parties “dropped out”, necessitating a communication between them and my tipstaff advising of the steps they should take to “dial back in”. Reconnection was successful on each occasion, although not without interruption to the course of the proceedings. From time to time counsel were also difficult to hear and on other occasions their submissions were fractured or time delayed. Despite the valiant endeavours of the court reporters, the integrity of the transcript suffered as a result.

13. I was advised by Courts Administration that the problems the parties were having in maintaining a connection to the virtual courtroom was not as a result of the court system but as a consequence of either the internet connection the parties were utilising or their devices, or both. I note that following the appearance of the parties on 27 March 2020, the AVL facilities in the Court more generally have been placed under very considerable pressure with parties in both criminal and civil matters using the technology simultaneously, and experiencing differing degrees of success in doing so. The Court has also encountered problems in the management of court lists in both common law and equity, given the volume of internet traffic through the Court system when those lists are operating.

14. At the hearing of the Crown’s notice of motion the parties were advised that on receipt of counsel’s submission, the Chief Justice had refused leave for the trial to resume in the manner proposed by the Crown in her submissions and endorsed by Mr Neil.

15. Mr Neil also proposed as a further alternative that a “witness hub” be arranged at the offices of the Director of Public Prosecutions from which successive witnesses would give their evidence with the prospect of ensuring the maintenance of a continuous feed from a single location obviating the risk of variable connectivity from where individual witnesses might “dial in” to the virtual courtroom, whether from their homes, offices in the CBD, from regional centres or from overseas. Ms Callan advised that would be contrary to the Director’s policy that there be no third parties permitted into the offices of the Director of Public Prosecutions, and that convening a “witness hub” at another location was not considered feasible.

16. Ms Callan also advised that it was neither feasible nor practicable to deliver a paper copy of the Court Book to each witness, inter alia for health and safety concerns, and because of perceived difficulties in securing a courier service who would undertake that task. The Court was informed that the preparation by the DPP of an electronic version of the Court Book, and the documents marked for identification, was underway with the expectation that it would be in final form early in the following week.

17. Mr Neil also informed the Court that his client was prepared to consent to a number of Crown witnesses giving their evidence remotely but wished to reserve his position in respect of the balance of the Crown’s witness list. That approach would require a reordering of the witness list which the Crown later advised by email of 2 April 2020 would not be done as to do so would “undermine the sensible and coherent presentation of the evidence”.

18. It has not been necessary to finally determine the Crown’s notice of motion for orders under the Evidence (Audio and Audio Visual Links) Act. It was common ground at the hearing on 27 March 2020 that the resumption of Mr Larking’s evidence might provide both the Court and the parties with an informed basis upon which to make an assessment as to whether the virtual courtroom, with all its attendant technical issues, would be an appropriate trial forum, including whether witnesses could be examined and cross-examined remotely utilising the electronic Court Book without any risk of unfairness to Crown or the accused.

19. Proceedings were then adjourned to Tuesday 31 March 2020 when it was anticipated Mr Larking’s evidence would resume in the virtual courtroom.

20. The parties were informed by email on the afternoon of 30 March 2020 that the Court was continuing to experience difficulties with the technology. The parties were advised that attempts were underway to endeavour to address those issues with a view to avoiding the problems that had been encountered in the proceedings on 27 March 2020. The parties were advised that the Court would reconvene on Wednesday 1 April 2020 at 10am by which time it was expected the Court and the parties would be in a position to assess whether the trial could continue remotely.

21. By email on the afternoon of Tuesday 31 March 2020, the parties were advised that the Court was continuing to experience difficulties in utilising the available technology but that continued efforts were being made to address and resolve what had become, by that time, systemic technological problems throughout the Court. The parties were advised as follows:

Dear Practitioners,  

The Court continues to experience difficulties in utilising the virtual court technology. Further, attempts are underway to address the problems encountered in this trial and other matters before the Court.

In order to maximise the prospect of their being established improvements to the capacity of the system to accommodate the multiple appearances at this trial and the need for witnesses to give their evidence without interruption, the Court will not convene tomorrow.

Her Honour will reconvene the Court at 11:00am on Monday, 6 April 2020.

Her Honour apologises for the late notice but the issues with respect to the technology have only just been communicated to her.

22. On Friday 3 April 2020, Mr Macdonald filed and served a notice of motion with supporting affidavit from Mr Martin seeking an order that the trial adjourn part heard to a date to be fixed. That notice of motion was returnable on 6 April 2020, the date fixed by the email of 31 March 2020 for the resumption of the trial.

23. At 10am on 6 April 2020, despite the repeated and concerted attempts by all parties, including each of the three accused, to access the virtual courtroom, no one was able to successfully make a connection. Each of the parties (and the accused) did, however, eventually appear by an audio link when the Court convened at approximately 11:30am to deal with the Mr Macdonald’s notice of motion. The Crown and her co-counsel appeared by telephone. Mr Neil appeared by telephone with his junior and Mr Moses Obeid from his chambers. Mr Neil advised that additional equipment, presumably at his client’s expense, had been installed at his end with a view to maximising the prospect of the trial continuing remotely but that even utilising that technology he was not able to access the virtual courtroom. Mr Martin appeared by telephone from his chambers. After a short delay, Mr Macdonald appeared by telephone from his home. Mr Edward Obeid appeared by telephone from his home. Mr Bowe, solicitor, announced his appearance for Mr Edward Obeid, also by telephone.

24. Mr Martin’s supporting affidavit was read. He was not cross-examined. Mr Martin deposed to the practical difficulties he has been faced with in continuing to represent Mr Macdonald as a direct access client in circumstances where, on 27 March 2020, the Directors of his chambers announced that no one other than floor members and staff would be permitted to enter and remain within chambers in the interests of the health and safety of all concerned. Mr Martin gave evidence that Mr Macdonald has limited computer skills and that he does not type with sufficient speed to provide satisfactory instructions by email during the currency of the trial from his home. Without the assistance of an instructing solicitor, Mr Martin said it was essential that Mr Macdonald is in a “face-to-face” setting with him during his trial so that his instructions may be refined or confirmed in the course of testing the further evidence to be adduced in the Crown case.

25. Mr Martin also deposed to the fact that Mr Macdonald has advised him that there have been regular “drop outs” in the internet service from his home and that his appearance at his trial “remotely” is likely to be compromised for that reason alone. Mr Martin asserted that the necessity to “prepare, archive and send” (electronically) every document he might seek to utilise in cross-examination of those witnesses yet to be called in the Crown case (that is, documents additional to those in the Court Book and those already marked for identification) is a very burdensome task where he does not have the assistance of an instructing solicitor.

26. Mr Martin also described personal difficulties that he has encountered in recent times dividing his time between his trial commitments from chambers and his family commitments where his wife has assumed the obligation of home schooling a six-year-old whilst supervising a two-year-old, and where the option of relying upon his parents-in-law to assist is not feasible given their age and underlying health concerns. That situation has been exacerbated by his wife sustaining an injury to her back.

27. Finally, Mr Martin averted to a risk that the current level of funding Mr Macdonald had available to him might leave him unrepresented were the proceedings to be further delayed or the trial estimate revised.

28. Despite what have presented as apparently entrenched, and largely unpredictable difficulties in the practical utilisation of the technology for the resumption of the joint trial of the accused in a virtual courtroom, and Mr Martin’s express concerns that the fairness of Mr Macdonald’s trial would be at risk were it to continue at this time, the Crown opposed the orders sought. Mr Neil and Mr Bowe neither consented nor opposed the orders sought.

29. The accused are entitled to a fair trial which includes, necessarily, fair process and procedures. I am of the view that a trial of the accused in a virtual courtroom is impractical. I have further resolved to the view that the accused’s right to a fair trial would be at risk were I to order that it continue at this time, subject as it is to the current health and safety regime imposed under the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) under s 7 of the Public Health Act 2010 (NSW), and the Chief Justice’s direction that there be no physical appearances in trial proceedings.

30. The trial is adjourned to 31 August 2020. I propose to mention the trial on 3 August 2020 to confirm that date. On resumption, subject to further order, the trial will continue to verdict.

31. In making that order, I should not be taken to have assumed that there will be an easing of the current social distancing restrictions over the next few months, or that there will be any necessary improvement in the capacity of this Court to conduct adversarial criminal trial proceedings. I am hopeful, however, that by adjourning the trial to 31 August 2020 it may be able to resume with all counsel appearing personally, albeit within a courtroom that preserves the need for social distancing, with the accused having the option of appearing via AVL and with witnesses having that option on an application being made under the Evidence (Audio and Audio Visual Links) Act, assuming the facilities are available to allow that to occur and that they can be utilised to practical effect.

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Decision last updated: 08 April 2020