R v Terdputham and Anor (Rulings Nos 1 and 2)
[2015] VSC 411
•30 July 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0144
S CR 2014 0145
| THE QUEEN |
| v |
| THATIYA TERDPUTHAM |
| and |
| SARUD SEEHAVERACHART |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 28 July 2015 |
DATE OF RULING: | 30 July 2015 |
DATE OF REASONS: | 14 August 2015 |
CASE MAY BE CITED AS: | R v Terdputham & Anor (Rulings Nos 1 & 2) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 411 |
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CRIMINAL LAW – Murder – Ruling No 1 – Admissibility of admission allegedly made to prison informer – Evidence Act 2008, ss 88, 90 and 137 – Whether an admission was made is a jury question, provided it is reasonably open to find that the admission was made – No unfair prejudice – No risk of jury overvaluing evidence if they accept it – Evidence admitted.
CRIMINAL LAW – Murder – Ruling No 2 – Application by prosecution for said prison informer to give evidence via video link – Evidence (Miscellaneous Provisions) Act 1958, s 42E – Witness undergoing sentence in Western Australia – Significant cost and inconvenience involved in bringing witness to Victoria – Right to confront prosecution witnesses in person fundamental, albeit not absolute – If accepted, probative value of prison informer’s evidence high – Level of cost and inconvenience not such as to outweigh fundamental right, given importance of evidence and seriousness of charge – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC and Ms R Harper | Office of Public Prosecutions |
| For the First Accused | Mr J Saunders | Ann Valos Criminal Law |
| For the Second Accused | Mr M Dempsey and Mr A Malik | Victoria Legal Aid |
HIS HONOUR:
The Issues
The accused Thatiya Terdputham, along with his co-accused Sarud Seehaverachart, is charged with murder. The prosecution seeks to adduce evidence of an admission by Terdputham to a prison informer, Gregory Dunn. Terdputham challenges the admissibility of Dunn’s evidence under ss 90 and 137 of the Evidence Act 2008 (Vic) (‘Evidence Act’).[1] Terdputham does not dispute that he spoke with Dunn when they were both in prison in Thailand awaiting extradition but denies that he made the alleged admission.
[1]In Terdputham’s written outline of submissions, Terdputham also relied on the common law unfairness discretion, which, according to the majority in Haddara v R [2014] VSCA 100 (‘Haddara’), continues to operate in Victoria, despite the introduction of uniform evidence law (see also S Odgers, Uniform Evidence Law Online (Thomson Reuters, 2015) [1.1.40]). Given the impugned evidence is an admission, the common law discretion adds nothing to the statutory unfairness discretion which specifically deals with admissions (s 90). Hence, Terdputham was content to rely exclusively on ss 90 and 137.
If Dunn’s evidence is to be admitted, the prosecution seeks to adduce his evidence via video link pursuant to s 42E of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) (‘the 1958 Act’) as Dunn is currently undergoing sentence in Western Australia. Both accused oppose the video link application. Seehaverachart’s interest in Dunn’s evidence arises from the fact that, on one view, Dunn’s account of his conversations with Terdputham inculpates Terdputham but, to some extent, exculpates Seehaverachart.
Summary of Conclusions
In relation to the first issue, namely, the admissibility of Dunn’s evidence, the main thrust of Terdputham’s submissions - the potential unreliability of Dunn’s evidence given he is a prison informer – goes to the issue of whether the admission was made. That is an issue for the jury, provided it is reasonably open to the jury to find that the admission was made. In this case, such a finding is reasonably open, a point conceded by Terdputham. If the jury find that the admission was made, the evidence will be highly prejudicial, but not in any unfair sense. Accordingly, Dunn’s evidence will be admitted, accompanied, of course, by strong directions as to its potential unreliability.
In relation to the second issue, whether Dunn’s evidence may be given by video link, the case law speaks of the accused’s right to confront prosecution witnesses in person as being fundamental, albeit not absolute. The accused are charged with murder. The probative value of the evidence of the prison informer, if accepted, will be high. The cost and inconvenience associated with bringing Dunn from gaol in Western Australia to give evidence in person will be considerable but, in all the circumstances, not of such a magnitude as to justify a video link.
Background
In the early hours of 24 May 2009, Luke Mitchell was stabbed to death in the car park of a 7-Eleven store at the corner of Sydney and Brunswick Roads, Brunswick. The attack on Mitchell was apparently prompted by his intervention earlier that night in an altercation involving, on the one hand, the accused men and their friend Teparat Tepsut, and, on the other, a man named Craig Bartlett. Mitchell acted as a ‘Good Samaritan’ in coming to the aid of Bartlett and it seems he got the better of one or more in the accused’s group before he departed.
On the prosecution case, the accused men and Tepsut then armed themselves with knives and went in search of Mitchell. On finding him soon after at the nearby 7-Eleven car park, both accused attacked Mitchell with knives, who was stabbed three times in the chest, once in the abdomen, and twice in the right arm. All three then jumped back into their car and sped off. They dumped the car and the weapons and each of them got on flights to Thailand the same day.
Terdputham and Seehaverachart were eventually arrested in Thailand and were incarcerated in Bangkok Remand Prison. There they both met an Australian named Gregory Dunn. Like them, he was the subject of extradition proceedings but, in his case, it related to a complicated tax fraud conspiracy allegedly perpetrated in Western Australia.
On Dunn’s account, Seehaverachart sought Dunn’s assistance in relation to preparation for his extradition proceedings and subsequent prosecution in Australia. Dunn, who was once an articled clerk and worked in a legal office for 14 years, read various documents and witness statements provided to Seehaverachart by the authorities in relation to his extradition proceedings. Dunn also advised Seehaverachart how to minimise legal costs, suggesting that Seehaverachart carefully write out his version of events, and commentaries on the various witness statements. These could in due course be provided to Seehaverachart’s legal representatives and save much time and cost in relation to instruction taking.
In the course of reading Seehaverachart’s documents, Dunn said he saw a photograph of Terdputham. When he subsequently encountered Terdputham in another part of the prison, he recognised him from the photograph. They spoke about the Mitchell incident. Terdputham told him, in substance, on a number of occasions, that he and Tepsut had stabbed and killed Mitchell. He also said that he felt sorry for Seehaverachart because there had been no plan to kill Mitchell,[2] that Seehaverachart had not stabbed Mitchell and that on his return to Australia, Terdputham would ‘clear’ Seehaverachart of murdering Mitchell. I note at this point that it is the prosecution case, based on the evidence of several eye witnesses, that Seehaverachart did, in fact, stab Mitchell.
[2]See Dunn’s Transcript of Interview 7 and his police statement at Depositions 453.
Dunn was eventually extradited to Western Australia. Whilst on bail there for his conspiracy matter, he contacted police about what he had learned about the Mitchell killing and eventually met with Detective Senior Sergeant Ron Iddles of Victoria Police. In a taped interview with Iddles, Dunn gave the above mentioned account of his dealings with Seehaverachart and Terdputham in the Bangkok Remand Prison. He indicated his willingness to assist the prosecution and signed a police statement based on the contents of the recorded interview.
After a trial, Dunn was convicted of the conspiracy alleged against him. At his plea hearing, a letter of comfort from Victoria Police was produced outlining Dunn’s cooperation with police and willingness to give evidence in Terdputham and Seehaverachart’s trial. Dunn received an informer’s discount on his sentence.[3]
Ruling No. 1 – Admissibility of admission allegedly made to prison informer
[3]On 28 February 2014, Dunn was sentenced by Justice E.M. Heenan of the Supreme Court of Western Australia for conspiring with another person with the intention of dishonestly causing a loss to a third person when that third person was a Commonwealth entity contrary to s 135.4(3) of the Criminal Code (Cth). He was sentenced to 7 years imprisonment with a non-parole period of 4 years, backdated to 17 September 2013 (R v Dunn [No 9] [2014] WASC 61).
Submissions
In seeking exclusion of Dunn’s evidence under ss 90 and 137, Terdputham submitted that Dunn fell into an inherently unreliable class of witnesses, namely prison informers. He distilled from the authorities a number of factors that give rise to concern about the evidence of such witnesses. They included: prison informers can be persons of bad character; oral confessions are easily concocted; there is usually no possibility of corroborating an accused’s denial; prison informers may be motivated to concoct confessions to try obtain benefits in relation to sentence or treatment; and, the informer may in fact receive benefits.
In addition to these general concerns, Terdputham pointed to particular concerns regarding Dunn, namely, that he has been convicted of a matter involving sophisticated criminality; the alleged admissions were made in a foreign prison, thus preventing access to prison documents that might support Terdputham’s denials in relation to Dunn’s account; he had received a letter of comfort from Victorian police; Dunn’s account of the impugned admissions is in general terms, not the exact words; at committal, he said at the time he made his statement, he believed it to be true and correct and he wasn’t sure about the date of the first conversation with Terdputham; during the interview with Iddles he twice had to be reminded as to which accused he was referring; and, the conversations between Dunn and Terdputham did not take place in Terdputham’s first language.
It will be appreciated that most of Terdputham’s complaints about Dunn’s evidence were concerned with his credibility in the narrow sense, namely, the possibility that he was lying. Some points, however, also challenged Dunn’s reliability (using that term in the narrow sense), namely, that it was possible that Dunn was mistaken about Terdputham having admitted to stabbing and killing Mitchell.
The prosecutor submitted that, in essence, Terdputham’s submissions were concerned with a jury question, namely, whether the admission was made. He submitted that this was not a case where complaint was made about the manner in which the alleged admission was obtained, giving rise to some unfairness in using it against him on the trial. If Dunn’s evidence of the admission is accepted, the prosecutor submitted that the probative value is very high, that it amounted to a confession to the crime charged. There was no risk of unfair prejudice in the jury ascribing it such value: that would simply be to ascribe the value it deserved.
The Law
The relevant provisions of the Evidence Act are as follows:
88 Proof of admissions
For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.
90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
Part One of the Evidence Act’s Dictionary provides:
admission means a previous representation that is—
(a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b) adverse to the person's interest in the outcome of the proceeding.
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
It will be apparent from a reading of s 90, and in particular the words ‘having regard to the circumstances in which the admission was made’ that it assumes that the admission was made. This assumption is also made in other provisions in Part 3.4 of the Evidence Act such as ss 84 and 85. This assumption is consistent with the common law approach to the admissibility of confessions and admissions.
In MacPherson v R,[4] Gibbs CJ and Wilson J said:
The question whether a statement is admissible is one to be decided by the judge and not by the jury. It is well settled that when an objection is taken to the admissibility of a confessional statement on the ground that it was not voluntarily made, the proper course is for the judge to hear evidence on the voir dire in the absence of the jury as to the circumstances in which the confession was made: Cornelius v. The King [1936] HCA 25; (1936) 55 CLR 235, at pp 248-249; Sinclair v. The King (1946) 73 CLR 316, at pp 321, 326; Sparks v. The Queen (1964) AC 964, at p 982. The likelihood that the accused would be prejudiced if the jury heard the evidence and the confession were later held to be inadmissible is so great that it is difficult to imagine a case in which evidence on such an issue could properly be taken in the presence of the jury. But in any case the judge must be satisfied that the confession was voluntary before he admits it, and if the accused wishes to give or adduce evidence on this issue the judge is bound to hear it. It will also usually be necessary to hold a voir dire when the confession is not alleged to be involuntary, but a real question arises as to whether it was unfairly or improperly obtained, although in that case, as we have said, the burden will lie on the accused to prove the facts which will reveal the unfairness or impropriety.
Where, however, there is no question whether the will of the accused was overborne, or of unfairness or impropriety, and the only matter in dispute is whether the accused made any confession at all, it will be inappropriate to take evidence on a voir dire. The question whether a confession was made is entirely one for the jury. (emphasis added)
[4](1981) 147 CLR 512, 520 (‘MacPherson’).
The New South Wales Court of Criminal Appeal adopted this approach to the admissibility of an alleged confession in R vSingh-Bal,[5] citing MacPherson as authority. Singh-Bal was a uniform evidence law case. The headnote conveniently summarises the relevant facts:
The appellant was convicted on a charge of deemed supply of marijuana. Part of the evidence relied on by the Crown was an admission allegedly made by the appellant to two police officers. The admission was not referred to in the police officers' initial statements and was not supported by contemporaneous notes. A third police officer gave evidence of prior consistent statement to rebut a suggestion that the evidence of the admission had been recently concocted. On the application of defence counsel, the police officers' evidence of the admission was initially given on a voir dire. The trial judge then declined to exercise his discretion to exclude evidence of the admission because it was more prejudicial than probative. There were three grounds of appeal. First, the trial judge erred in admitting evidence of the admission. Secondly, the evidence of the prior consistent statement was incorrectly admitted. Finally, the trial judge misdirected the jury in relation to the evidence of prior consistent statement.
[5](1997) 92 A Crim R 397 (‘Singh-Bal’).
The Court in Singh-Bal dismissed the appeal. Hunt CJ at CL with whom McInerney and Donovan AJ agreed, said at 402 to 403:
The first ground of appeal is that the judge erred by admitting the evidence of the police officers as to the admission made to them by the appellant. The attack is upon the judge's decision, following the voir dire examination, that he would not exclude the evidence pursuant to s 137, although it is also now asserted that, alternatively, he should have excluded the evidence pursuant to s 135 upon the basis that its probative value was substantially outweighed by the danger that the jury may be misled or confused by it.
In my opinion, and with respect, the whole voir dire procedure upon that basis was misconceived. The question whether an admission of guilt was made is entirely one for the jury; it cannot be decided by the trial judge. If the jury accepted that the admission was made, then there was no relevant prejudice to the appellant at all. All that the evidence did was to tend (quite properly) to establish the Crown case. If the jury accepted that the admission was made, there was no danger that they would use the evidence that it had been made upon some basis logically unconnected with the issues in the case. That was the way in which the Christie discretion was interpreted at common law. That is how the Law Reform Commission intended s 137 to be interpreted.
If the jury accepted that the admission was made, there was no danger that the jury could have been misled or confused by it. The content of the admission could not have been clearer. There was no submission made either at the trial or before this Court that, even if Constable Henderson's evidence were to be accepted, the possible ambiguity in part of that evidence was such that the jury may misinterpret it as amounting to a clear admission. That is no doubt because any ambiguity in that evidence was removed by the certainty of the rest of his evidence and the evidence of Sgt Fanning. All that counsel then appearing for the appellant was attempting to persuade the judge was that the evidence of the two officers was so suspect that the jury should not accept that evidence. The precise nature of the prejudice to the appellant appears to have been the danger that the jury might wrongly accept that evidence, although it was never stated in that way at the trial. That is not an appropriate subject of a voir dire examination either. It is for the jury to determine which parts of the evidence they accept and which parts they reject. This Court has held that the power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness (or witnesses) upon which the Crown case depends. The trial judge can exclude the evidence only where, taken at its highest, its probative value is outweighed by its prejudicial effect … (underlining added)
A number of commentators, when discussing s 88 of the Evidence Act,[6] endorse the view that, under uniform evidence law, it is a matter for the jury as to whether or not an admission was made, provided the judge is of the view that it is reasonably open to the trier of fact to find that the admission was made.
[6]It is a nice question whether the word ‘admissible’ in s 88 refers to: (a) evidence that is relevant; (b) not excluded by an exclusionary rule; and (c) not to be excluded in the exercise of a discretionary power. If ‘admissible’ means just (a) and (b) but not (c), s 88 does not apply to s 90, which is a discretion (see the discussion in Haddara at [60] to [63] about the meaning of ‘admissible’ in the context of s 56). Interestingly, in Singh-Bal, no reference was made to s 88. But whether or not s 88 applies to discretions as well as exclusionary rules, Singh-Bal is a decision of an intermediate court of appeal that the question of whether a confession was made is one for the jury. There is nothing in the Evidence Act to suggest that the common law approach in this regard has been overturned and the terms of s 90 itself presume that the admission was made.
J.D. Heydon states in Cross on Evidence (Online)[7] at [35640]:
Section 88 provides that for the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that that person made the admission. On one view this relaxes the standard of proof. On that view the provision would alter the law in criminal proceedings substantially since at common law the prosecution bears the burden of proving that an alleged confession was made and the burden is higher than a "reasonably open" standard. The law in civil proceedings would be changed in the same way. So read, s 88 would operate as an exception to the general regime established by s 142, which creates a balance of probabilities standard in relation to the proof of facts antecedent to admissibility. An alternative view is that s 88 is not concerned with whether or not an admission was made, but with the issue of what assumption or view the court should proceed on in determining whether an alleged admission is admissible. The question: "Was an admission made?" is one for the trier of fact after all the evidence is closed. The question: "Assuming an admission was made, is it admissible?" is one for the court, initially at the time when the admission is tendered, which may be before a time when the maker of the alleged admission denies making it. The latter construction is probably the better one: the "finding" that a person made an admission where it is reasonably open to do so is not a finding that it was made for all purposes, but only for "the purpose of determining whether evidence of an admission is admissible". If it is admitted the question for the trier of fact will remain: was it made? If it was not made, it will be disregarded. Statements tendered as admissions cannot be used for the purpose of demonstrating a precondition to admissibility. (footnotes omitted)
[7]J.D. Heydon, Cross on Evidence (Online) (LexisNexis, 2015) [35640].
Ligertwood and Edmond state in Australian Evidence:[8]
Whether an admission or confession has been made is a jury question. The judge’s function is to determine whether the evidence is capable of justifying such a conclusion – whether such an inference is reasonably open (as enacted in s 88 of the Uniform Acts). Once such evidence exists, the issue must be left to the trier of fact.[9]
[8]A. Ligertwood and G. Edmond, Australian Evidence - A Principled Approach to the Common Law and the Uniform Acts (LexisNexis, 2010, 5th ed) [8.101] (‘Ligertwood’).
[9]Ligertwood cites the following cases for this proposition at [7.7] and [8.101]: Ajodha v The State [1982] AC 204; MacPherson v R (1981) 147 CLR 512, 520-523; R v Johns (1999) 110 A Crim R 149, [31]-[32] (NSWCCA); R v Hall [2001] NSWSC 827, [28]–[29].
Turning now to s 137 of the Evidence Act, and the case law in relation to that section, it is important to remember, given that the main attack on Dunn’s evidence is that he is lying, that the Court of Appeal in R vDupas[10] decided that, in general, when assessing the probative value of evidence, the witness’s credibility (honesty) is to be assumed but not his or her reliability (accuracy).[11]
[10][2012] VSCA 328; 218 A Crim R 507 (‘Dupas’).
[11]Dupas [63].
As regards the danger of unfair prejudice that must also be assessed under s 137, the fact that evidence increases the likelihood of conviction is not prejudice in the relevant sense. It must be unfair prejudice in the sense that there is a real danger that the jury will misuse or overvalue the evidence.[12]
[12]Dupas [175].
Analysis
Terdputham concedes that it is reasonably open to the jury to find, based on the evidence of Dunn and other evidence in the case, that he admitted to Dunn that he, along with Tepsut, stabbed and killed Mitchell.[13] Notwithstanding the fact that Dunn falls into a class of unreliable witnesses, and has received a considerable sentencing discount for assisting the prosecution in this matter, I consider this concession to be an appropriate one. The primary challenge to the admissibility of Dunn’s evidence is the risk that Dunn is lying when he claims that Terdputham confessed to him. But, as the authorities referred to above indicate, whether or not a confession was made is a jury question. Although reliability may be the touchstone of unfairness,[14] one assumes for the purposes of s 90 that the admission was made, if that is reasonably open. Having made that assumption, one then considers whether the risk that the admission is unreliable is so great as to warrant rejection in the exercise of the discretionary power. Despite the efforts of Terdputham to suggest that he was not contravening the principle in MacPherson and Singh-Bal, I am of the view that he was in fact asking me to resolve what is, and has long been, a jury question.
[13]Pre-trial transcript, 50.
[14]R vSwaffield & Pavic (1998) 192 CLR 159 [54].
So far as the application under s 137 concerned, it too in effect invites me to disregard the assumptions[15] that the authorities say I should make. I note that Singh-Bal was a case in which s 137 was invoked, unsuccessfully. Furthermore, if the jury accept Dunn’s evidence, I do not consider any unfair prejudice could occur. On Dunn’s account, Terdputham effectively admitted to murdering, or being a party to the murder, of Mitchell. It is difficult to see how any other construction could realistically be given to the admission. The jury would place great weight on the admission but that would not be to overvalue it. That would be to give it the weight it deserves. Consequently, I reject the application to exclude Dunn’s evidence as to the admission allegedly made by Terdputham.
[15]Assumptions as to whether the admission was made and as to Dunn’s credibility.
Ruling No. 2 – Application for Dunn to give evidence by video link
On 29 June 2015, the prosecution signalled their desire to call Dunn by video link, as he is incarcerated in Western Australia and transporting him to Victoria to give evidence would be a costly exercise. Both defence counsel objected to this course. On 14 July 2015, prior to empanelment of the jury, the prosecution filed a written application under s 42E of the 1958 Act to call six witnesses, one of whom was Dunn, by video link. Only the application in relation to Dunn was opposed. Subsequently, Terdputham and the prosecution filed written submissions on the issue, and all parties made oral submissions before me on 28 July 2015.
The Law
Pursuant to s 42E(1) of the 1958 Act, the court has the power to ‘direct that a person may appear before, or give evidence … to, the court by audio visual link …’.
Section 42E(2) provides that such a direction can only be made if certain technical requirements are met: there was no issue in that regard here. The 1958 Act does not otherwise provide guidance on the circumstances in which a witness can testify from a remote location. In R v Cox & Ors (Ruling No 6),[16] Kaye J distilled the following principles from other authorities on the issue:
[16](2005) 165 A Crim R; [2005] VSC 364.
(1) The question for the court is whether it is in the interests of justice that an order be made under s 42E.
(2) In considering that question, the right of the accused to a fair trial is paramount.
(3) It does not follow that, because the accused may sustain some forensic disadvantage by reason of an order under s 42E, such an order should not be made. As Brooking J observed in a different context in Jarvie v Magistrates’ Court of Victoria, a ‘... fair trial does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused.’
(4) The right of an accused to confront, in person, those who testify against him or her is a fundamental right in our criminal justice system.
(5) However, as Redlich J observed in Goldman, that right, while fundamental, is not an absolute right at common law. Section 42E is a further qualification of that right in appropriate circumstances.
(6) The question whether it is in the interests of justice to make an order under s 42E must be determined by balancing, on the one hand, the interests of the accused, and, on the other hand, the public interest in the ability of witnesses to give evidence in significant criminal trials without thereby occasioning danger to themselves or to other members of the community.
(7) Nonetheless a court should not make an order under s 42E where to do so would unduly prejudice the right of an accused person to a fair trial. For, as I have observed, that right must be paramount.[17]
[17]Ibid [7]. Footnotes omitted.
As regards (6), there is no suggestion in this case that anyone would be endangered by Dunn being brought to court to give evidence in person. Cost and inconvenience are the factors relied on by the prosecution.
The prosecution bears the burden of satisfying the court that the direction should be made.[18]
[18]Director of Public Prosecutions v Finn (Ruling No 1) [2008] VSC 303.
Submissions
In written submissions, Terdputham relied on the following passage from R v Goldman:[19]
Even if video link evidence has the same qualities as evidence given in court the right of a party to confront those who testify against them and to do so in the presence of the tribunal of fact should be given great weight particularly as there may be a danger that the substance and manner of a witness’s testimony may differ if the witness is not required to face the party against whom they testify. Whether the interests of justice will be served by permitting a different course must be approached with this factor in mind. Other relevant considerations will include the nature and extent of the dispute over the witness’s proposed testimony, the importance of the witness to the issues in the case and the technology available.
[19](2004) 148 A Crim R 40; [2004] VSC 165, [18]. Footnotes omitted.
Terdputham submitted, in reliance on R v Kim,[20] that the decision must be made according to the circumstances of each case.
[20](1998) 104 A Crim R 233; [1998] VSC 215.
Terdputham noted that the prosecutor had emphasised the high probative value of Dunn’s evidence during submissions on the admissibility of that evidence. Terdputham submitted that Dunn’s evidence came within a category of evidence that had ‘long been regarded unreliable’.[21] He confirmed his intention to attack Dunn’s credibility and said his ability to do this will be hampered if the evidence is given by video link.
[21]Written submissions [17].
In both oral and written submissions, Terdputham submitted that the case law revealed that the court had granted applications when the witness faced a risk of harm, or when they were overseas and could not be compelled to return. Neither of those scenarios arise here. The sole basis for the present application is the associated costs – which Terdputham acknowledged would be considerable. He submitted that it was vital that the jury be in a position to assess Dunn’s evidence. He emphasised that the charge is one of murder. In these circumstances, Terdputham submitted that ‘matters of economy must take … a back seat’[22] and that the interests of justice were such that the application should be refused.
[22]Pre-trial transcript 65.4.
The prosecutor said he anticipated that Dunn giving evidence in person would be ‘horrendously expensive’.[23] He submitted such costs were unjustifiable. He said granting the application would not only reduce costs, but also inconvenience to Dunn and custodial and law enforcement agencies here and in Western Australia. The prosecution maintained that it is common for witnesses to appear via video link. Contrary to the defence submissions, he said such cases are not limited to situations where the witness is overseas or in danger. The prosecutor said in his written submissions that key witnesses had given evidence by video link many times, including when their credibility had been a central issue in the trial. In oral submissions, he elaborated on this, highlighting that for the last 20 years complainants in sex cases had all given evidence remotely. He denied that this had led to any injustice.
[23]Pre-trial transcript 67.2.
The prosecutor submitted that the defence concern was unfounded and that they would not be precluded from strongly testing Dunn’s evidence. The prosecutor also cited R v Kim[24] at [12] and [22] in support of his arguments:
[24](1998) 104 A Crim R 233; [1998] VSC 215.
[I]t is pertinent to note that the necessary public scrutiny may still occur with video-link, the production of documents need not occasion difficulty, there is no real delay in voice transmission, and the demeanour of a witness may be assessed using video-link … . Indeed, Giles J added that experience had shown that demeanour could adequately be assessed using video-link facilities. … Further, in relation to the issue of the credit of a witness, Sackville J disavowed the proposition that video-link would always be inappropriate where a witness’s credit was likely to be challenged.
…
The courts of this State should embrace the new technologies of the 20th and 21st Centuries which facilitate the trial process and where the use of such technology is consistent with the basic principles of justice.
The prosecutor said that the accused had not outlined how allowing Dunn to appear by video link would prejudice the defence, or hamper their ability to test his evidence or credibility.
He said he is not aware of any appeal being made of a court’s decision to allow a witness to give evidence by video link.
As to the significance of Dunn’s evidence, the prosecutor said he is an important witness, but not central to the prosecution case.
Based on the above considerations, the prosecutor submitted that the interests of justice favour granting the application.
In response, Terdputham submitted that the difficulty cross-examining Dunn by video link stemmed from the remoteness and lack of atmosphere impacting upon Dunn.
Seehaverachart submitted that the jury should be in the best position to assess Dunn’s credit. He submitted that that would clearly be achieved by Dunn giving evidence in person.[25]
[25] As noted above, Seehaverachart opposes Dunn giving evidence via video link for different reasons. Seehaverachart relies on Dunn’s evidence because it implicates Terdputham and, to some degree, exculpates Seehaverachart. Dunn says Terdputham told him that Seehaverachart did not stab Mitchell, contrary to what the prosecution alleges. Seehaverachart is apparently concerned that Dunn’s credit will be adversely affected if he gives his evidence from a remote facility.
Additional Evidence
The prosecutor’s submission that the cost of bringing Dunn to Victoria would be ‘horrendous’ led me to request evidence from the prosecution as to the comparative costs of Dunn giving evidence via video link and in person. The prosecution filed an affidavit from a senior solicitor at the Office of Public Prosecutions, Ms Kerryn Parnham, in relation to the estimated and comparative costs.
Dunn is imprisoned in a gaol approximately 400 kilometres from Perth. He could be video linked from that gaol, at a total estimated cost of $1,347, assuming his evidence took approximately six hours. It is likely that his evidence will be completed within a day.
If he was to be brought to Victoria to give evidence in person, the estimated costs vary between $14,620 and $22,608. He would be flown by charter plane to Perth, accompanied by two security officers, who would also accompany him to and from Melbourne. There is only one flight escort conducted in and out of the area on a Tuesday of each week: charter flight costs would be inflated by an additional $5,000 if Dunn is not flown by charter on a Tuesday. On arrival in Melbourne, Dunn would be kept at the Melbourne Assessment Prison. According to the affidavit, it is anticipated that three officers from the Victorian Security and Emergency Group would assess and accompany Dunn whilst he is in Melbourne. Even though Dunn’s evidence is likely to be completed in a day, he would need to be here across three days.
Analysis
Dunn is an important prosecution witness. If the jury accepts his evidence that Terdputham told him that Terdputham and Tepsut had stabbed and killed Mitchell, it is difficult to see how the jury could not reach the conclusion that Terdputham was a party to a joint criminal enterprise to kill or at least really seriously injure Mitchell. Dunn’s credit is therefore a key issue in this trial, at least so far as Terdputham is concerned.
As regards Seehaverachart, the prosecution has indicated that it will adduce from Dunn that Terdputham also told him that Seehaverachart did not stab Mitchell. The prosecution does not object to Seehaverachart relying on that evidence for the truth of what it asserts, although it is the prosecution case, relying on the accounts of eye witnesses to the attack, that Seehaverachart did stab Mitchell. Dunn’s evidence is therefore also important to Seehaverachart’s defence.
The case law reveals a strong presumption in favour of prosecution witnesses giving evidence in person, even though it is routine now, as a result of legislative intervention, for complainants in sex cases to give evidence by video link. But it is not cost and inconvenience that has led to the use of video links in sex cases. Rather, Parliament has been concerned to minimise the trauma for such complainants, often very young complainants, by allowing them to give evidence from remote facilities.
Where the charge is murder, and the witness is important, there may be occasions where the cost and inconvenience associated with bringing the witness to court to give evidence in person are of such a magnitude that the court should order the taking of the evidence via video link. Reasonable minds may differ as to when that point is reached. In my view, it has not been reached so far as Dunn is concerned. Having Dunn in court to give his evidence will provide the best opportunity for assessing his credit.
Accordingly, the application for him to give evidence via video link is refused.
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