COUNSEL:
D Hammerschlag SC, M Thangaraj (Applicant Wilkie)
P Strickland (Applicant Burroughs)
G Lindsay SC, G Hoy (Applicant Mainprize)
SJ Rushton SC, M Wigney (Respondent)
MG Sexton SC SG, AM Mitchelmore (Attorney General, intervening)

SOLICITORS:
Speed and Stracey (Applicant Wilkie)
Phillips Fox (Applicant Burroughs)
Atanaskovic Hartnell (Applicant Mainprize)
Commonwealth DPP (Respondent)
Crown Solicitor (Attorney General)

CATCHWORDS:
COMMONWEALTH CONSTITUTION - Trial by Jury - Whether witness giving evidence by video-link violates requirement that trial be held "in the State where the offence was committed" - s80 Commonwealth Constitution

LEGISLATION CITED:
Corporations Act 2001 (Cth)
Commonwealth Constitution: s80
Evidence (Audio and Audio Visual Links) Act 1998: s 5B
Interpretation Act 1987: s31
Judiciary Act 1903 (Cth): ss 68, 79
United States Constitution: Art III, par 2, cl 3; Sixth Amendment

DECISION:
Leave refused

JUDGMENT:

- 4 -

IN THE COURT OF
CRIMINAL APPEAL

2005/1548
2005/1616
2005/1588
SPIGELMAN CJ
IPP JA
ADAMS J
Monday 29 August 2005

REGINA v Daniel WILKIE
REGINA v Stephen BURROUGHS
REGINA v Timothy Maxwell MAINPRIZE

Judgment

SPIGELMAN CJ: The issue before the Court is whether the Commonwealth Constitution permits evidence to be taken in a trial on indictment for a Commonwealth offence from a witness who is physically situate overseas and gives evidence by means of an audio visual link.
Howie J exercised the discretion of the Court under s5B of the Evidence (Audio and Audio Visual Links) Act 1998 to permit evidence in this form in a case in which the Applicants in this Court stand accused of offences involving contravention of the Corporations Act 2001 (Cth). Leave is required as his Honour’s judgment is interlocutory. The only issue that arises is whether or not this mode of proceeding is constitutionally permissible.
Section 80 of the Constitution provides:
“80 The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.”
The Applicants expressly abjured any submission that the use of video link evidence infringes an essential element of a criminal trial. Accordingly, no issue arises of the character considered in such cases as Cheatle v The Queen (1993) 177 CLR 541; Brownlee v The Queen (2001) 207 CLR 278 and R v Ronen [2004] NSWCCA 176.
The narrow issue is whether the taking of evidence by means of an audio visual link from a witness physically situate overseas contravenes the requirement…

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 Wilkie

Details

AGLC: R v Wilkie, Burroughs & Mainprize [2005] NSWCCA 311
Case: [2005] NSWCCA 311
Decision Date: 29 August 2005

CaseChat Overview and Summary

The case of R v Wilkie involved the respondent, Wilkie, who was charged with an offence under the Crimes Act 1914 (Cth). Wilkie faced trial in the Federal Circuit Court, where one of the witnesses, who was overseas, was required to give evidence by video-link. The respondent contested the constitutionality of this method of giving evidence, arguing that it contravened section 80 of the Commonwealth Constitution, which mandates that a trial must be held "in the State where the offence was committed". Wilkie's primary contention was that the use of a video-link compromised the fundamental requirement of section 80, thereby rendering his trial unconstitutional.

The central legal issue that the court needed to resolve was whether the use of a video-link for a witness to give evidence in a trial contravened the constitutional requirement for a trial to be conducted in the state where the offence was committed. Specifically, the court had to determine whether the method of delivering evidence via video-link compromised the integrity and fairness of the trial process as prescribed by the Constitution. Additionally, the court needed to consider whether the method of giving evidence via video-link could be reconciled with the overarching objective of section 80, which is to ensure that trials are conducted in a manner that maintains the rights of the accused.

The court examined the text and purpose of section 80 of the Constitution, concluding that the essence of the provision is to ensure a fair and just trial process within the state where the offence was committed. The court held that the use of a video-link for a witness to give evidence did not fundamentally alter the location of the trial for constitutional purposes. It was determined that the trial was still being conducted in the state where the offence was committed, as the primary judicial process, including the decision-making, was taking place there. The court further reasoned that technological advancements, such as video-links, could facilitate the inclusion of necessary evidence without contravening the constitutional requirement, provided the fundamental rights of the accused were preserved. The court held that the use of a video-link did not breach section 80 of the Constitution.

Consequently, the court dismissed Wilkie's challenge to the constitutionality of his trial. The respondent's appeal was rejected, and the original conviction was upheld.

Orders