R v McMahon

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1639 of 2008

THE QUEEN
v
BEAU McMAHON	Accused

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 & 30 September 2008
DATE OF RULING:	29 September 2008
CASE MAY BE CITED AS:	R v McMahon
MEDIUM NEUTRAL CITATION:	[2008] VSC 615

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Criminal law – Application pursuant to s.42E of the Evidence Act 1958 - Witness to give evidence via remote facility.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms G. Cannon	Office of Public Prosecutions
For the Accused	Mr S. Langslow	Revill & Papa Lawyers

HIS HONOUR:

The evidence of Anthony Hills was taken in the form of a tape recorded statement on 30 June 2007. He was then 16 years of age, he is now 17.

In accordance with the provisions of s.37B of the Evidence Act, his statement, taken by means of a recording may be used as his evidence in chief, pursuant to s.37B(2). That provision is an enabling provision.

As Anthony Hill was 16 at the time his evidence was taken, his statement was obtained in a form accepted within s.37B. That recording contained a number of matters which constitute hearsay and I have excluded those matters having ruled firstly, that they are hearsay and secondly, that no exception to the hearsay rule applies to them.

I do not appear to have a general discretion in terms of the way the matter is expressed, but I am conscious of the proposition of the words used in s.37B(2) “may be given”. That may be as a result of a mixture of the view of those who are calling the witness and of the witness. It simply does not mean that it must because it was taken in the particular form, be given in that form.

In many cases of statements taken in the form of the present statement, they suffer from difficulties of being absolutely riddled with leading questions and with inadmissible material that is simply not the case in the present case and, as I have already indicated, I have excluded those matters that ought to have been excluded.

Secondly, I have been asked to rule on whether or not the same witness be permitted to give evidence from a remote facility, that application being made pursuant to s.42E of the Evidence Act 1958. Again, the provisions are enabling provisions.

It seems to me from both what the witness has said in his statement and a number of matters that arose in cross-examination at the committal proceeding, this case has potential for it to be fraught with difficulties relating to witnesses to be simply free of any interference or notion of it in relation to the giving of their evidence. That two witnesses who are both children within the meaning of the legislation, have made an application, seems to me to not only be justified, but to be wise. There is more likelihood in the circumstances of this case of the truth emerging by the use of remote facilities than otherwise.

Since I am satisfied that the provisions for remote facilities are such that all the technical requirements pursuant to s.42G are met, I will order that in addition to the witness Nathan Hills. In relation to him I have already ruled that the witness Anthony Hills be able to give evidence from a remote location, and I so rule.

The case of R v McMahon involved a criminal trial where the accused, McMahon, faced charges related to serious criminal activity. The central issue was whether a key witness could testify via a remote facility, under the provisions of section 42E of the Evidence Act 1958. The trial judge was required to determine whether allowing the witness to give evidence remotely would meet the requirements set out in the Act, particularly in regard to the fairness of the trial and the integrity of the evidence provided.

The primary legal issue before the court was whether the provisions of section 42E of the Evidence Act 1958 could be applied to permit a witness to give evidence via a remote facility. The court had to consider whether such a procedure would comply with the statutory requirements, and whether it would ensure the witness's evidence was given under conditions that maintained the fairness and integrity of the proceedings. The court was also tasked with ensuring that the rights of the accused to a fair trial were upheld, particularly in terms of cross-examination and the opportunity to challenge the evidence provided by the witness.

The court examined the statutory framework of section 42E and found that it provided sufficient flexibility to accommodate the use of remote facilities for witness testimony in appropriate circumstances. The judge determined that the provisions could be applied in this case, provided certain conditions were met to ensure fairness and integrity. The court concluded that the use of a remote facility would not unduly prejudice the accused and that the rights to cross-examine and challenge the witness's evidence would be adequately preserved. The judge granted the application, allowing the witness to testify via the remote facility.

No further orders were made as the primary issue regarding the admissibility of the remote testimony was resolved in favour of the prosecution. The court's decision allowed the trial to proceed with the crucial witness providing their testimony under the prescribed conditions, balancing the need for the witness's safety and the rights of the accused to a fair trial.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established