R v Strawhorn

[2004] VSC 415

IN THE SUPREME COURT OF VICTORIA Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1427 of 2003

THE QUEEN

v

WAYNE STRAWHORN

---

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.

---

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.

---

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:

1. 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.

1. 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

1. 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.

1. In this case evidence has been given by Detective Senior Sergeant Brigham of the CEJA Task Force, as to the extensive activities of the proposed witness AA as a police informer.  I do not propose to detail them.  It is enough to say that his past history places him in significant personal danger of physical harm or death.  This evidence was not challenged by the defence.  Nor was the evidence of Sergeant William Baker, who was the case officer for AA in the Victorian Witness Protection Program.  Mr Baker confirmed the existence of significant risk to the witness and expressed the opinion that to ensure his safety, and that of police officers, members of the public, and court officials, his evidence should be given via video link. 

1. Finally, Acting Senior Sergeant Robert Hodge, the Officer in Charge of the Law Courts Division of the Protective Services Unit, deposed to the inadequacies of security in the Supreme Court Building.  The witness produced a report by a Sergeant McGowan outlining the great, if not insurmountable, difficulties of providing adequate security for the Supreme Court complex.  The witness expressed concern for the safety of all Court users should AA be brought to the Supreme Court.

1. Insofar as the County Court was concerned, whilst conceding that the security arrangements were superior to those of the Supreme Court, Mr Hodge deposed to a breach of security effected by the S.O.G. in a security audit;  the potential presence of members of the public in areas through which the witness AA would have to travel to reach the courtroom;  and the time a vehicle carrying him would have to wait in the street for the garage door, permitting access into the Court, to open.  Despite there being significantly less risk in the County Court, Mr Hodge indicated that he would not wish to bring AA (or indeed his wife) into the County Court to give evidence.

1. On the material before this Court, I have concluded that the witness AA would be exposed to a real risk of harm if he were to give evidence at the Supreme Court.  Moreover, his wife, HH, would also be exposed to such harm by reason of her close association with him.  Indeed, the fact of a degree of risk to both witnesses was conceded by the defence.

1. However, it was put by the defence that in the balancing exercise which needed to be undertaken, the crucial importance of AA's evidence in relation to the first four counts on the presentment had to be taken into account.  It was submitted, in essence, that if his evidence were to be given using the video-link technique, the jury's capacity to assess the credibility and reliability of this very important witness would be gravely impaired.

1. It was asserted that the jury, if limited to viewing the witness' head and shoulders, would be deprived of the opportunity of gauging his attitude and demeanour.  Such matters as "fidgeting fingers", "nervously jiggling knees", and "moving feet" were mentioned.

1. I suppose that many juries are deprived of such aids to evaluate demeanour (if aids they be) by the trend towards enclosed witness boxes and the provision of seating for witnesses.  In many instances the jury see no more than the witness' head and shoulders.  However, there is clearly a distinction between the presence of a witness in a courtroom and a two dimensional video image (albeit that in some courtrooms the video image will present the jury with a larger view of the witness' visage than if the witness had been in the actual witness box). 

1. In this case it is estimated that the witness AA will be giving evidence for up to five days.  Such a period of time would, in my view, provide the jury with both the opportunity and the capacity to make an adequate assessment of the witness' demeanour.

1. Concerns were also expressed by the defence about the availability of the requisite technology to refer documents or videos to the witness in a manner which did not inhibit cross-examination. The prosecution submitted that the technology did exist for such interaction to take place "easily, seamlessly and fairly". I see no reason to doubt this assertion. In any event should the video-link proceeding prove, in practice, to be operating inadequately or unfairly, the Court has power (pursuant to s.42E(3) of the Act) to terminate such proceeding.

1. In the course of argument it was urged by the defence that an option which should be explored was a utilisation of the County Court specifically for the evidence of these two witnesses.  Assuming, for the sake of argument, that a court was available, I would not take up that option.  Although safer than the Supreme Court, the evidence indicates that a significant element of risk remains.  Additionally, there is, I think, a downside to the accused if that course were to be adopted.  The need to transfer to a separate court solely for the evidence of these witnesses would more readily fuel jury speculation that the witnesses were in protection, or in need of it.  This is in contrast to the simple device of using a video-link as a convenient method of obtaining evidence from a witness – a practice which some jurors may have read about or with which they may be familiar.

1. It follows from the foregoing that I regard the interests of justice as best served in the present case by adducing the evidence of AA and HH through the video-link procedure.

---

CERTIFICATE

I certify that this and the 3 preceding pages are a true copy of the reasons for ruling of Coldrey J of the Supreme Court of Victoria delivered on 15 November 2004.

DATED this 15th day of November 2004.

Associate