Legal Research
Cases
R v Wilkie

R v Wilkie

Case [2005] NSWSC 794 5 August 2005

Jurisdiction

Appeal

Unfair Trial

Admissibility of Evidence

Criminal Law

No judgment structure available for this case.

Type to search within this case.

CITATION:
R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794

HEARING DATE(S): 22/07/2005

JUDGMENT DATE :

5 August 2005

JUDGMENT OF:
Howie J at 1

DECISION:
Application granted and directions made. See para 83.

CATCHWORDS:
Criminal Law - Practice and Procedure - Application for evidence to be given by two overseas witnesses using videolink - witnesses unwilling to attend Australia - whether use of the procedure would be a breach of s 80 of the Constitution - whether it would result in an unfair trial - relevance of Crown's refusal to give undertaking as to costs thrown away if trial aborted due to failure of the procedure to prove effective and fair - application granted and directions made.

LEGISLATION CITED:
Corporations Act 2001 (Cth) - ss 232(2), 1309(1)
Evidence (Audio Visual Links) Act 1998 (NSW) - ss 5B, 5C
Supreme Court Rules - Part 36 rule 2A, Part 75 rule 2(7)
Constitution - s 80
Judiciary Act 1903 (Cth) - ss 68(1), 78A(1), 79
Criminal Procedure Act 1986 (NSW) - s 285
Evidence Act 1995 (NSW) - ss 137, 165
Cost in Criminal Cases Act 1967 (NSW)

CASES CITED:
Moyette Pty Ltd v Foundation Healthcare Ltd [2003] FCA 116
Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia (2001) 53 NSWLR 1
Brown v The Queen (1986) 160 CLR 171
DPP v X (unreported, 29 March 1994, Vic SC, BC9401206)
Bell Group Ltd v Westpac Banking Corporation (2004) 208 ALR 491
B v Dentists Disciplinary Board [1994] 1 NZLR 95
Cheatle v The Queen (1993) 177 CLR 541
Brownlee v The Queen (2001) 207 CLR 278
R v Ronen [2004] NSWCCA 176
DPP v Alexander (1993) 33 NSWLR 482
American Publishing Co. v Fisher 166 US 464
United States of America v Baker 45F 3d 837 (1995)
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588
R v Yates [2002] NSWCCA 520
Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, 11 March 1997, NSWSC, Giles CJ Comm D)
Bayer AG v Minister for Health of the Commonwealth of Australia (1988) 96 FLR 50
Laporte Group Australia Ltd v Vatselias (unreported, 15 November 1991, NSWSC, Young J)
Australian Securities and Investments Commission (ASIC) v Rich (2004) 49 ACSR 578
R v Ngo (2003) 57 NSWLR 55
Jarvie v Magistrates' Court (Vic) [1995] 1 VR 84
Barton v The Queen (1980) 147 CLR 75
Jago v District Court (NSW) (1989) 168 CLR 23
McDonald v Federal Commissioner of Taxation (2002) ATC 4271
R v Stackelroth (1996) 86 A Crim R 438
R v Em [2003] NSWCCA 374
R v Mendham (1993) 71 A Crim R 382
R v Fowler [2003] NSWCCA 321
R v Goldman (2004) 148 A Crim R 40

PARTIES:
Regina v Daniel Wilkie
Regina v Stephen Burroughs
Regina v Timothy Mainprize

FILE NUMBER(S):
SC 2004/2110; 2004/2113; 2004/2114

COUNSEL:
M. Wigney - Crown
Accused Wilkie - D. Hammerschlag SC and M. Thangaraj
Accused Burroughs -…

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 [2005] NSWSC 794
Case: [2005] NSWSC 794
Decision Date: 5 August 2005

CaseChat Overview and Summary

In the case of R v Wilkie, the accused faced criminal charges before a court in Australia. Two key witnesses for the prosecution were overseas and unwilling to attend the trial in person. The application was made to allow these witnesses to give evidence via videolink. The High Court of Australia was called upon to determine the legality and fairness of such a procedure under the Australian Constitution and to consider the implications of the Crown's refusal to provide a financial undertaking should the trial be disrupted.

The primary legal issue before the Court was whether the use of videolink for the witnesses would violate section 80 of the Constitution, which guarantees the right to a trial by jury and mandates that the trial must be conducted in the state where the offence was committed. Another key question was whether the proposed procedure would result in an unfair trial for the accused. The Crown's decision not to commit to covering costs if the trial were to fail due to the ineffectiveness of the videolink procedure was also a significant consideration.

The Court held that the use of videolink for the witnesses would not breach the constitutional requirements, as long as the trial remained fundamentally fair and just. The Court found that the technology available could ensure that the witnesses' testimonies were adequately presented and cross-examined. The Court further determined that the Crown's refusal to provide a financial undertaking was not a barrier to the use of videolink, as it did not affect the fairness of the trial process itself. The application for the use of videolink was therefore granted with specific directions to ensure the integrity of the proceedings.

The Court made clear directions to ensure that the use of videolink would not compromise the fairness of the trial, including the requirement for all parties to have access to the same technological resources and for the witnesses to be available for cross-examination in real time. This decision allowed the trial to proceed with the necessary evidence being presented effectively, while upholding the constitutional rights of the accused.

Orders