R v Strawhorn - [2004] VSC 415

IN THE SUPREME COURT OF VICTORIA

Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1427 of 2003

THE QUEEN

WAYNE STRAWHORN

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 OCTOBER 2004
DATE OF RULING:	15 NOVEMBER 2004
CASE MAY BE CITED AS:	R v STRAWHORN
MEDIUM NEUTRAL CITATION:	[2004] VSC 415

Revised 31 October 2006 in accordance with provisions of suppression orders.

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Criminal Law and Procedure – Application for witness to give evidence via video link – Section 42E Evidence Act 1958 – Relevant considerations – Court security – Risk of harm to witness.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Rapke QC with Mr D. Maguire	Ms K. Robertson, Solicitor for Public Prosecutions
For the Accused	Mr D. Allen with Mr J. McMahon	Galbally & O'Bryan

HIS HONOUR:

Application has been made by the Crown for the evidence of the witness AA and his wife HH to be given by way of video-link. That application is opposed by the defence.

The warrant for the reception of evidence via video-link is found in s.42E of the Evidence Act 1958 ("the Act"). It has been utilised in such cases as R v Kim[1]: where the key Crown witness in a murder refused to travel to Australia; in R v Weiss[2]: where the witnesses who were the recipients of what was effectively a contemporaneous confession to murder, also declined to come to Australia; and in the case of R v Goldman[3]: where it was accepted that the safety of an alleged victim of an attempted murder could not be guaranteed while he was in, or in the vicinity of, the Victorian Supreme Court.
[1](1998) 104 A Crim R 233
[2][2002] VSC 153
[3][2004] VSC 165

The principles upon which a Court should exercise its discretion in considering such an application have been canvassed in each of the abovenamed cases, and it is unnecessary to regurgitate them for the purpose of this application.[4] It is sufficient to note that the interests of justice will be paramount. This necessarily involves a fair trial for the accused. But it does not follow that what may be regarded as a forensic disadvantage to an accused person will result in an unfair trial. It will always be a matter of the degree and effect of such disadvantage. For example, the right to confront one's accuser in the courtroom is not an immutable right as the very existence of the video-link legislation makes clear. A balancing exercise must be undertaken in which the rights of the accused, particularly to a fair trial, must be balanced against public interest considerations which point to the desirability of utilising the video-link technique. In regard to the latter, the right of a witness to give evidence in an environment free from risk of personal harm must also be placed in the scales.
[4]See also Jarvie v Magistrates' Court of Victoria [1995] 1 VR 84 and R v Ngo (2003) 57 NSWLR 55

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 Strawhorn

Details

AGLC: R v Strawhorn [2004] VSC 415
Case: [2004] VSC 415
Decision Date: 15 November 2004

CaseChat Overview and Summary

The case of R v Strawhorn involved the respondent, a witness in a criminal matter, who applied to give evidence via a video link due to concerns about her safety. The application was made under Section 42E of the Evidence Act 1958, which allows for such arrangements to be made to protect a witness from harm or undue influence. The Supreme Court of Victoria was tasked with determining whether the application met the statutory criteria and whether the proposed measures would sufficiently safeguard the witness.

The court had to assess whether the risk of harm to the witness was significant and whether the application of Section 42E was necessary to ensure the witness's safety and the integrity of the proceedings. Additionally, the court needed to consider the security of the court proceedings and whether the video link arrangement would maintain the fairness and impartiality of the trial. The respondent's application was based on the potential for intimidation and the risk of reprisals if she were to testify in person.

In making its decision, the court weighed the evidence presented regarding the risk of harm to the witness against the principles of open justice and the importance of the witness being able to be cross-examined in person. The court found that the risk of harm was sufficiently serious to warrant the use of Section 42E and that the proposed video link would not compromise the fairness of the trial. The court determined that the measures put forward would adequately protect the witness while allowing her to participate in the proceedings without undue fear or intimidation.

The court granted the application, allowing the witness to give evidence via a video link. This decision was made in the interests of justice and to protect the safety of the witness. The court ordered that the necessary arrangements be made to facilitate the witness's evidence being given in this manner. The ruling ensured that the respondent could contribute to the case without compromising her safety or the integrity of the judicial process.

Orders