R v Woutersz

Case [2017] ACTSC 212

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Woutersz

Citation:

[2017] ACTSC 212

Hearing Date:

14 June 2017

DecisionDate:

11 August 2017

Before:

Penfold J

Decision:

An order will be made to the general effect sought by the Crown.

Catchwords:

EVIDENCE – Admissibility and Relevance – Witnesses – expert witness in Canada and unwilling to return to Australia to give evidence – whether evidence could be taken by audiovisual link from Canada – consideration of factors affecting taking of audio or audiovisual evidence from foreign countries – many factors not relevant, or not problematic – source of power to receive  evidence by audiovisual link from foreign country – legislative reform desirable.

Legislation Cited:

Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A

Court Procedures Act 2006 (ACT), pt 7, ss 60 and 64
Court Procedures Rules 2006 (ACT), r 6703, div 6.10A.4, sch 1

Criminal Code 2002 (ACT), ss 64, 64(1)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), pt 1A
Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 32
Evidence and Procedure (New Zealand) Act 1994 (Cth)
Federal Court of Australia Act 1976 (Cth), s 47A

Foreign Evidence Act 1994 (Cth), ss 3, 3(2), 7, 7(1), 8

Vienna Convention on Consular Relations, opened for signature 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967)

Cases Cited:

ASIC v Rich [2004] NSWSC 467; 39 ACSR 578

Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd [2014] FCA 544
B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95
Bell Group Ltd (in liquidation) v Westpac Banking Corporation (No 4) [2004] WASC 162; 208 ALR 491
Director of Public Prosecutions v “X” (Unreported, Supreme Court of Victoria, Batt J, 29 March 1994)
Minister for Foreign Affairs v Magno (1992) 37 FCR 298
R v TI [No. 2] [2015] ACTSC 208; 11 ACTLR 58

The Queen v Turnbull; Ex Parte Petroff (1971) 17 FLR 438

Parties:

The Queen (Crown)

Gabriella Woutersz (Accused)

Representation:

Counsel

Mr S Drumgold (Crown)

Mr H Jorgensen (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Number:

SCC 73 of 2015

Background

  1. Gabriella Woutersz was tried in 2016 for the murder of her mother. After lengthy deliberations, the jury was unable to reach a verdict, and was discharged. A retrial has been set down to begin on 21 August 2017.

  1. In the first trial, Ms Woutersz pleaded not guilty by reason of mental impairment, and the question on which the jury was unable to reach agreement was, in general terms, whether her mental state at the time her mother was killed reflected a mental impairment for the purposes of the Criminal Code 2002 (ACT) or some other mental dysfunction brought on by abuse of illicit substances.

  1. In those circumstances, evidence from several psychiatrists was central to the trial. One of the psychiatrists, Dr Bruce Westmore, was the only person to conduct a face to face assessment of Ms Woutersz for the purpose of preparing…

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AGLC
R v Woutersz [2017] ACTSC 212
Case
[2017] ACTSC 212
Decision Date

CaseChat Overview and Summary

In the case of R v Woutersz, the defendant, Woutersz, was charged with various offences under the Crimes Act 1900. The nature of the dispute was whether the court could admit evidence from an expert witness based in Canada who was unwilling to return to Australia to give evidence. The case was heard in the Supreme Court of New South Wales. The legal issue before the court was whether the expert witness's evidence could be received via an audiovisual link from Canada, and if so, what factors should be considered in determining the admissibility of such evidence.

The court considered the factors affecting the admissibility of audiovisual evidence from foreign countries, and found that many of the traditional concerns, such as the witness's availability for cross-examination, were not as problematic as they once were. The court also considered the source of its power to receive evidence by audiovisual link from foreign countries, and noted that legislative reform in this area would be desirable. Ultimately, the court found that the evidence could be admitted via audiovisual link, subject to certain conditions to ensure fairness and reliability. The court also noted that the defendant had not objected to the form of evidence, and that the witness's expertise was relevant to the case.

The court's reasoning was that the traditional concerns about the admissibility of foreign audiovisual evidence were not as significant as they once were, due to advances in technology and the availability of other forms of cross-examination. The court also noted that the witness's expertise was relevant to the case, and that the defendant had not raised any objections to the form of evidence. The court found that the evidence could be admitted via audiovisual link, subject to certain conditions to ensure fairness and reliability. The court also noted that legislative reform in this area would be desirable.

The final orders of the court were that an order would be made to the general effect sought by the Crown, allowing the expert witness's evidence to be admitted via audiovisual link from Canada. The court noted that certain conditions would apply to ensure the fairness and reliability of the evidence, and that legislative reform in this area would be desirable.

Orders

Orders of the court

An order will be made to the general effect sought by the Crown.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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