R v Tangi (No 3)

[2020] NSWSC 538

Supreme Court

New South Wales

Medium Neutral Citation:	R v Tangi (No 3) [2020] NSWSC 538
Hearing dates:	20-21 November 2019
Date of orders:	21 November 2019
Decision date:	21 November 2019
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	Application for audio-visual evidence of Witnesses A and B refused at this stage.
Catchwords:	EVIDENCE – criminal proceedings – suggestion that witnesses whose names are suppressed should be protected further by AVL evidence – exercise of discretion discussed – possible unfairness – application refused
Category:	Procedural and other rulings
Parties:	Regina (Crown) Abraham Ryan Tangi (Accused)
Representation:	Counsel: P Hogan (Crown) G Wendler (Accused)   Solicitors: Director of Public Prosecutions (NSW) (Crown) Universal Lawyers (Accused)
File Number(s):	2017/242644
Publication restriction:	Not to be published until the conclusion of the trial

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an application that the evidence of Witness A and Witness B be taken in a manner in which the evidence is adduced in Court remotely through an audio visual link and the cross-examination occurs remotely in the sense that counsel will be in the courtroom and each of the two witnesses will be in a place other than the courtroom

2. The circumstance of each witness is slightly different. Witness A is in custody. The relevant officer testifies in support of the application for evidence by audio visual link or remotely that all of the reasons that were used in relation to the application for a suppression order are relevant to and relied upon for the purposes of the audio visual link. I have, in the earlier judgment, considered those reasons but essentially they relate to fear for his safety and/or the safety of his family as a consequence of it becoming known that he was giving evidence for the Crown in a criminal prosecution.

3. The Court does not live in an ivory tower. The Court is prepared to accept that there are risks associated with an inmate giving evidence in Court against another inmate or former inmate and that risk is a risk of the perpetration of violence by other prisoners or other persons on remand.

4. There are a couple of matters that are raised and to which Mr Wendler, who appears for the accused has particularly identified. One of them is that Witness A testifies that he is a member of a criminal group who, if they were to find out that he has given evidence in the trial against an accused, might or would perpetrate violence against Witness A.

5. Mr Wendler says, to some extent a counsel of perfection, but an understandable counsel of perfection, that the Court would not lend its powers to facilitating the continued membership of Witness A in a criminal group. With that, I agree. At the same time, the issue really is one related to the administration of justice, namely, how this trial and its fairness will be facilitated. The safety of a witness must be given practical effect.

6. I do not accept the submission that it is disadvantageous, from the point of view of assessing demeanour and the reaction of witnesses, to have them on a screen rather than in person.

7. In my experience, both on the Bench and before I was appointed, almost the opposite is the case. The effect of the television is to bring the face of a witness into stark contrast and to be clearly visible to the fact-finder in a way that, from a witness box, may not be as obvious.

8. Having said that, there are fundamental issues associated with the process of trials, including the openness of a trial and the need for an accused to confront, in the psychological sense, his accuser. It may well be that a witness would more willingly fabricate evidence or dissemble in relation to evidence if he is less aware of the fact that people in the courtroom are aware he is saying what he is saying and the matters can be checked.

9. The other aspect is the question of how one cross-examines. Mr Wendler says in relation to Witness A at least, and sub silentio also in relation to Witness B, that it would be unfair to the accused not to be able to cross-examine each of the witnesses as effectively as might otherwise be the case by the showing of documents.

10. In the case of Witness A, it is said, and I accept it comes from the Bar table, that there may be a difficulty of the witness following documents or questions that otherwise might be asked unless he was present and able to be shown certain material.

11. It is a difficult question in the case of Witness A because of the issues associated with the risk to safety in prison. However, I am yet to be satisfied that the idea of him being secluded off in an audio visual room for a day or more at a prison is less obvious, in terms of giving evidence, than being brought into Court for a day or two, particularly in circumstances where it could be arranged for his own proceedings to be in the list, or some related proceedings to be in the list, either the District Court or elsewhere. So I am not satisfied that, in the case of Witness A, the issues that he raises goes sufficiently to satisfy the Court that the basis for an audio visual link has been made out and should be granted.

12. Plainly, I take into account the fact that the Court has already given or made an order suppressing any identification of Witness A or any matter that would identify him and the Court would consider favourably any application to close the Court, during his evidence if that were thought necessary or would aid the administration of justice.

13. Again, closing the Court runs into the principles adumbrated by Spigelman CJ about the prima facie right of courts to be open and subject to public scrutiny. In other words, I am not prepared to make an order that the audio visual link applies to Witness A.

14. I turn then to Witness B. I have more sympathy for the application in the case of Witness B: first because it doesn’t rely upon his membership of criminal gangs; but, secondly, there are said to be psychiatric or psychological reasons why it would be difficult for him to give evidence in Court.

15. I make it clear, I do not in any way question the veracity of the officer who has testified to that issue and his genuine view as to that matter. But, in the absence of a psychiatric or psychological report, it is difficult for the Court to rely upon what, in effect, is the genuine view of the officer, presumably taken from the witness alone rather than from a discussion with the psychiatrist.

16. If the evidence of the officer had been that he had spoken to the psychiatrist and could give the details of what the psychiatrist said, that, at least, would inform the Court better of an expert view of the issues that are raised in relation to Witness B. However, the evidence does not even go that far.

17. Again, in relation to Witness B, there is a non-publication order and a suppression order in place. It seems to me, on the state of the evidence as it exists, I am not satisfied that sufficient grounds have been made out to make an order that the evidence be adduced by AVL, but I leave it open to the Crown if they so desire to renew that application if further evidence is obtained.

18. I am not indicating a view that it will be granted in those circumstances or it will not be granted; I am simply saying I will treat that issue much more seriously. I treat it seriously now, but I will treat it differently in those circumstances.

19. Can I say one other thing about the evidence, so far as I am aware of the way in which it will go. It is relatively uncontroversial that the deceased died and died in a prison cell. It is also relevantly uncontroversial, or seems to be at this stage of my understanding of the evidence, that at some stage or other the deceased and the accused were in the cell together. What seems to be in issue is whether other people were in the cell, the timing of their period together in the cell, and the conduct of the accused when he left the cell.

20. In the case of Witness A, there is a whole range of reasons that the Court would have to warn the jury about a prison admission to another prisoner, said to be in writing.

21. In the case of Witness B, it seems that the cross-examination will depend very much on the CCTV, the reaction of the witness to the CCTV and his positioning in the cell structure. As a consequence, it does seem to be important for the jury to be able to see the witness at the time the witness is being shown the CCTV footage and to see the witness’s reaction to it. That can be done through AVL if the facilities are available. Frankly, I do not know if the facilities are available, but that is a factor of which the Crown ought not to lose sight, if they wish to re-agitate the issue.

22. All of that leads to the conclusion that the application for evidence by audio visual link is at this stage, refused.

**********

Decision last updated: 13 May 2020