R v Woutersz
[2017] ACTSC 212
•11 August 2017
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 Criminal Code 2002 (ACT), ss 64, 64(1) 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 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
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.
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.
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 an expert psychiatric report for the trial, although another psychiatrist interviewed her by telephone and via an audiovisual link, and evidence was also given by two of her treating psychiatrists. Nevertheless, Dr Westmore’s evidence was crucial.
The retrial
I understand that when the date was set for the retrial on 20 December 2016, the Crown accepted it subject to witness availability. By that time, Dr Westmore’s office was closed for the Christmas/New Year break, and in the event it was not until April this year that Dr Westmore’s secretary notified staff of the Director of Public Prosecutions (DPP) that Dr Westmore would be overseas in August and September this year. Dr Westmore has declined to return to Australia to give evidence, but has indicated his willingness to give evidence from Canada by audio or audiovisual link.
The Crown has accordingly sought an order for Dr Westmore’s evidence to be received by such a link from Canada.
It is clearly desirable that Dr Westmore’s evidence is available in Ms Woutersz’s trial, and equally desirable that this retrial is not further delayed, especially given the difficulty of listing a trial expected to last at least 4 weeks. Counsel for Ms Woutersz initially expressed a position of neither opposing nor supporting the making of the order sought by the Crown. At my request, he sought specific instructions about the matter, and in due course advised that the defence supported the making of the order.
The lack of opposition to the making of the order, while in one sense useful, has also complicated my consideration in that there is, in effect, no contradictor to the submissions made by the Crown about what are difficult questions of domestic, foreign and to some extent international law.
The issues
The Crown’s application raises several difficulties.
Matters addressed in TI
In the matter of R v TI [No. 2] [2015] ACTSC 208; 11 ACTLR 58 (TI), I was asked to make an order permitting a complainant in relation to a sexual offence charge, who was not willing to return to Australia, to give evidence at the trial by audiovisual link from the Australian High Commission in Singapore. In the end the application was abandoned, but in that case, I would have declined to make such an order for several reasons. My concerns related to the following matters:
(a)whether I had power to make any such order, under r 6703 of the Court Procedures Rules 2006 (ACT) (the Rules) or otherwise;
(b)whether in administering an oath or affirmation to the complainant in the trial I would have contravened the law of the foreign country concerned; and
(c)whether such an order would have purported to authorise (or require) a person in a foreign country to give evidence on oath or affirmation in contravention of the law of the foreign country.
In the end, I concluded as follows:
29.... there are difficult questions that would be raised by interpreting r 6703 as conferring a power to receive evidence from a remote location anywhere within or outside Australia that is independent of, and renders irrelevant, the qualified power to do so that is conferred by primary legislation (the Evidence (Miscellaneous Provisions) Act). In these circumstances, it seems to me that a more likely, and indeed more appropriate, interpretation of r 6703 is that r 6703(1) provides the context in which r 6703(2) gives, to a court that is exercising a specific statutory power to receive evidence from a remote location, the power to impose conditions on the taking of that evidence.
...
36.The only basis for believing that the Court has that power now seems to be r 6703, which for reasons already set out does not appear to me to be a sound basis for the Court to risk breaking the law of another country or requiring a witness to do so.
The application in TI was abandoned after it emerged that the Singapore police had advised the Australian Federal Police liaison officer of their expectation that there should be communications between the Australian Attorney-General’s Department and the equivalent organisation in Singapore before evidence was taken as proposed.
This case is different in several respects.
First, this case involves not a complainant but an expert witness who, although he will be called by the Crown, is obliged to give independent evidence; the duty of such a witness is set out in the Expert Witness Code of Conduct found in sch 1 to the Rules), and is as follows:
1.2General duty to court
(1)An expert witness has a paramount duty to assist the court impartially on matters relevant to the expert’s area of expertise.
(2)This paramount duty to the court, [sic] overrides any duty to a party to the proceeding or other person retaining the expert.
(3)An expert witness is not an advocate for a party.
Furthermore, much of the evidence the expert witness will give has already been given in the first trial, and to the extent to which his evidence will be new, it will be evidence in response to other expert evidence called by the defence in the first trial. His evidence will be important to the issue for determination, but whether it will support the prosecution or defence case may not yet be clear.
Next, there has been contact between Australian and Canadian officials about the Canadian view of the current proposal.
As well, the Crown has identified other possibly relevant legislative provisions and examples of previous judicial consideration of the issues, and has drawn them to my attention. That material in several respects supports the making of an order as sought by the Crown; little or none of it positively suggests that the order should not be made.
Finally, as already mentioned, the defence does not oppose the receipt of the evidence.
The decision in Bell Group
In considering the issues in this case I have had regard not only to the legal considerations canvassed in TI but also to the decision of Owen J in Bell Group Ltd (in liquidation) v Westpac Banking Corporation (No 4) [2004] WASC 162; 208 ALR 491 (Bell Group), a civil matter in which his Honour considered the scope for receiving evidence on oath or affirmation by audiovisual link from the United Kingdom. His Honour identified the difficulties in receiving such evidence as follows:
60The primary contention of the plaintiffs is that the State parliament intended a scheme by which this Court is empowered to take evidence by video link from, and only from, another place within the State or from participating jurisdictions. The latter (save for jurisdictions that are prescribed) envisages only other jurisdictions where there is comity, in the sense that the other jurisdiction has enacted legislation equivalent to the provisions in s 123 to 131 for the facilitation of hearings conducted by video link. It is common ground that no other jurisdiction has been "prescribed" for these purposes and that the United Kingdom does not have a comparable legislative scheme. This construction, the plaintiffs submit, follows from the fact that in relation to a video link from a place within the State that place is deemed to be a part of the Court. The plaintiffs also contend that such a construction is natural and logical because parliament cannot have intended that the Court conduct hearings by video link in circumstances where:
(a)there is no legislative provision in the foreign jurisdiction conferring upon the judge, counsel and witnesses the protection, privileges and immunity they would usually enjoy;
(b)the Court has no power over the proceeding so far as it is conducted in the foreign jurisdiction so that:
· the Court would be unable to control the conduct of the proceedings by making directions relating to practice and procedure;
· the Court would be unable to make orders for maintaining confidentiality;
· the Court would be unable to administer an oath in circumstances where, if the witness were to commit perjury, he or she would be subject to prosecution and punishment;
· the Court would be unable to administer a sanction for contempt of court; and
(c)the Court (in the absence of enabling legislation in the foreign jurisdiction) runs the risk of infringing the sovereignty of the foreign state.
Some of these matters had arisen in TI, but others were not, or did not need to be, canvassed in that judgment. I comment on each of them below.
Matters raised in Bell Group
Immunity for judge, counsel and witnesses
If there is any legislative provision in Canada conferring, upon the judge, counsel and witnesses involved in an ACT trial, the protection, privileges and immunity that those people would usually enjoy for activities within the local jurisdiction, it has not been brought to my attention. However, it does not seem that in this particular case the apparent absence of such immunities would be significant. In Bell Group, his Honour said:
108.I do not have to decide whether or not the English courts would extend the immunity from suit to an Australian court taking evidence by video link from London. But I do have to determine whether there is risk (which is real and at an unacceptable level) that immunity might not be extended. I am conscious of the fact that exposure to the risk (if it exists) would extend to witnesses, some of whom are likely to become involved only because the process compels them so to do.
In this case, there will be no question of compelling the witness.
It is possible, depending on the detail of the witness’s evidence, that it might be defamatory, but I cannot see why that evidence would not be protected in any defamation action in an Australian court – whether it might be actionable under Canadian law is another question, but one which in the current circumstances seems unlikely to arise.
Applying the test mentioned by Owen J, I am not in a position to reach a conclusion whether the Canadian courts would “extend the immunity from suit to an Australian court taking evidence by video link” from Vancouver, but it does not seem to me that there is a real and unacceptably high risk that the availability or unavailability of such immunity in the Canadian courts would become relevant, and problematic, in this case.
The Court’s power to control the proceedings
In the circumstances of this case, it does not seem that possible constraints on, or even the possible absence of, a power in the Court to control the conduct of the proceedings, to the extent that the proceedings involve the receipt of Dr Westmore’s evidence by audiovisual link from Vancouver, is likely to be problematic. Dr Westmore is willing to give evidence in that way, and because Dr Westmore is an expert witness, it is unlikely that enforceable orders about the procedure by which he would give evidence from Vancouver would need to be made. Rather, I expect that any procedural arrangements required would be able to be agreed on between counsel, Dr Westmore, and me; in the unlikely event that Dr Westmore became unco-operative, then the solution would simply be to terminate his evidence and, if necessary, discharge the jury. The slight risk of this outcome does not seem to outweigh the certainty that if Dr Westmore’s evidence cannot be received from Canada, the trial will need to be postponed.
There has been no suggestion that any orders for maintaining confidentiality might need to be made; I do not understand that any such orders needed to be made last time Dr Westmore gave evidence. Nor can I see any difficulty in making enforceable orders about the confidentiality of Dr Westmore’s evidence once it is received in this Court, and since Dr Westmore will give his evidence from a private location in Vancouver (whether the Australian Consulate or his hotel room) I can see no confidentiality problem arising because of the absence of any applicable Canadian law protecting confidentiality.
As to the capacity to prosecute or punish Dr Westmore for perjury, or to sanction him for contempt of court, I note first that Dr Westmore is an Australian citizen, and secondly that his expressed intention is to return to Australia after the end of his trip.
Section 64 of the Criminal Code is as follows:
64Extension of offences if required geographical nexus exists
(1)An offence against a law is committed if—
(a)disregarding any geographical considerations, all elements of the offence exist; and
(b)a geographical nexus exists between the ACT and the offence.
(2)A geographical nexus exists between the ACT and an offence if—
(a)the offence is committed completely or partly in the ACT, whether or not the offence has any effect in the ACT; or
(b)the offence is committed completely outside the ACT (whether or not outside Australia) but has an effect in the ACT.
There would seem to be a “geographical nexus” between the ACT and an offence of perjury “committed” under s 64(1) by action in Canada that had an effect on the evidence put before a jury in an ACT trial.
Accordingly, a prosecution in the ACT for perjury might well be available under s 64 of the Criminal Code in respect of false evidence given outside Australia for the purposes of a court operating in the ACT. Any such prosecution could proceed against Dr Westmore once he returned to Australia. It seems unlikely that concern about such a prosecution would induce Dr Westmore to exile himself from Australia indefinitely.
It is possible that s 64 and other relevant provisions might not extend to permitting the sanctioning of Dr Westmore for a contempt of court committed by him while present in Canada. However, in the particular circumstances, the risk of Dr Westmore needing to be dealt with for contempt of court seems to me to be very low.
Risk of infringement of sovereignty of foreign state
The Crown’s application was supported by an affidavit from Rae-ann Khazma of the DPP’s office. In it, Ms Khazma referred to correspondence from Mark McCormack from the Australian Attorney-General’s Department about communications with the Canadian authorities. By reference to his email address, Mr McCormack appears to be a member of the Commonwealth Attorney-General’s Department, but his email address or signature block does not identify his position, or area, within that department. Ms Khazma’s affidavit attached an email exchange, between prosecutor Shane Drumgold and Mr McCormack, in which Mr Drumgold set out the proposal for Dr Westmore, an Australian citizen, to give evidence in this trial from Vancouver, via audiovisual link, on a specified date in August. Mr McCormack provided the following advice:
We have discussed with our counterparts in Canada the proposal that the witness ... give evidence from Vancouver. Canada has advised that if the witness is co-operative and is willing to give evidence, Canada does not need a formal request. If the witness needed to be compelled, then we would need one.
We therefore do not consider that a mutual assistance request will be required for the taking of evidence from Dr Westmore so long as he is a voluntary witness.
This evidence is not particularly satisfactory, given that I do not know where in the Attorney-General’s Department Mr McCormack works, and therefore I can make only the vaguest assumptions about who his “counterparts in Canada” might be, but it does seem to indicate that officers in some part of a Canadian government organisation with functions similar to the functions of some part of the Australian Attorney-General’s Department functions do not see any concerns with the giving of evidence by Dr Westmore on the basis proposed by the Crown. Furthermore, it seems reasonable to assume that officers of the Attorney-General’s Department, and their counterparts in Canada, would know enough about how criminal trials operate to have understood Mr Drumgold’s proposal as involving an oath or affirmation to be administered by a judge in the ACT but made by Dr Westmore from his location in Canada.
On this basis, I am prepared to assume (rather than conclude) that, if I were to administer an oath or affirmation to Dr Westmore via audiovisual link between Canberra and Vancouver, and if Dr Westmore were to make such an oath or affirmation, neither of us would be breaking any Canadian law.
In considering whether receiving Dr Westmore’s evidence by audiovisual link from Canada would infringe the sovereignty of that country, I can only note the advice from Mr McCormack of the Attorney-General’s Department that his Canadian counterparts do not see a problem with the proposal for this Court to take evidence from Dr Westmore in Canada.
Power to admit evidence given from overseas
As discussed, the various impacts on the proceedings, on the witness concerned, and on the Court, of receiving evidence from a foreign country by audiovisual link are obviously important issues in a matter of this kind.
The other important issue, and the one which particularly concerned me in TI, is the perhaps more fundamental question of whether the Supreme Court has any power to make orders for the receipt of such evidence (even assuming that the evidence could be taken without any breach of foreign law or sovereignty and, at least, without any appreciable and unacceptable risk, that questions of immunity from suit for the witness and the Court have the potential to compromise the taking of that evidence).
In TI, as noted, I concluded that it was more likely that r 6703 merely conferred powers on a court to impose conditions on the taking of evidence pursuant to a specific statutory power to receive evidence from a remote location than that r 6703 itself conferred that power. Nothing has been put to me on this occasion that particularly advances the arguments on that question in either direction.
The Crown did, however draw my attention to other provisions, some more relevant than others.
Court Procedures Act 2006
Section 64 of the Court Procedures Act 2006 (ACT) is as follows:
64Rules of practice and procedure—judicial discretion
In a proceeding, if no provision about a matter of practice or procedure of a court is made under this Act or another territory law, the court may give the directions about practice and procedure that it considers appropriate.
If this provision were applicable, it might well provide a basis for me making orders in a situation not covered by r 6703; however, the provision sits within pt 7 of the Court Procedures Act, which is expressed to apply to “a civil proceeding in the Supreme Court or Magistrates Court” (s 60). I do not see that it is useful in the current, criminal, case.
“Location” of Australian Consulate in Vancouver
The Crown submitted that s 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) might allow Dr Westmore’s evidence to be taken from the Australian Consulate in Vancouver on the basis that the consulate was a place “within Australia”.
Section 32 is as follows:
32Territory courts may take evidence and submissions from place other than participating State
(1)Subject to any Act or rules of court, a territory court may, on the application of a party to a proceeding before it or on its own initiative, direct that a person, whether or not a party to the proceeding, appear before, or give evidence or make a submission to, the court by audiovisual link or audio link from—
(a)a place in the ACT that is outside the courtroom or other place where the court is sitting; or
(b)a place outside the ACT but within Australia (other than a participating State).
Note The Evidence and Procedure (New Zealand) Act 1994 (Cwlth), pt 4 (Use of video links or telephones in Australian proceedings) and the Court Procedures Rules 2006, div 6.10.7 (Taking evidence from New Zealand by video link or telephone)[1] apply to the taking of evidence and submissions by audiovisual links or audio links from New Zealand.
(2)The court may make the direction only if satisfied that—
(a)the necessary facilities are available or can reasonably be made available; and
(b)the evidence or submission can more conveniently be given or made from the place; and
(c)the making of the direction is not unfair to any party opposing the making of the direction.
(3)The court may at any time amend or revoke a direction made under this part, either on the application of a party to the proceeding or its own initiative.
(4)While a person is at a place giving evidence or making a submission, the place is taken to be part of the court.
In TI I considered the significance of the Vienna Convention on Consular Relations 1963 (the Vienna Convention) for activity within “consular premises”, and concluded at [42]:
... no submissions were made about the interpretation of international agreements, and my understanding is that although the approach is similar to that adopted for interpreting legislation, it is not identical, and may include some different principles. Accepting this, I nevertheless conclude that the relevant articles of the Vienna Convention do not appear to operate as a blanket withdrawal of the receiving State’s interest in what happens within the consular post; it is by no means clear that the Convention operates to effect the position often described colloquially as rendering the premises of the consular post part of the territory of the sending State.
Since then, a number of Australian and foreign decisions have been brought to my attention which confirm my scepticism about the proposition that the premises of a consular post are part of the territory of the sending State. In The Queen v Turnbull; Ex Parte Petroff (1971) 17 FLR 438, Fox J dealt with a claim that acts allegedly committed within the Chancery of the USSR in Canberra were not committed in the ACT because the Chancery premises “are foreign soil”. His Honour said at 441-442:
The premises of a foreign chancery or embassy are not outside the territory to which the criminal law, otherwise operating in this Territory, applies. The sections of the Crimes Act now in question apply as fully to acts done on embassy or chancery premises as to acts done elsewhere, but certain persons have a privilege or immunity from their operation and in any event it is a different question whether the law can be enforced in relation to such acts.
...
Counsel for the applicants claims that the proposition relied upon is part of the municipal law of this Territory. He seeks to establish this contention by referring to some of the older texts dealing with the extra-territoriality of diplomatic premises and he invites me to find that the law as thus expressed has at this time such current acceptance that it should be regarded as part of our municipal law (see Chow Hung Ching v. The King).
Reliance is placed by counsel upon passages which derive from the days of Grotius, who lived from 1583 to 1645, but it is apparent from all the modern texts that the principles espoused by Grotius in this connextion do not now have international acceptance. Indeed, the extent of the acceptance of the contrary proposition by the publicists is such that there may be said to be a positive rule to the effect that in general the criminal law of a State does apply to criminal conduct on diplomatic premises. There is of course no necessity to have any such special rule, because one simply accepts the prima facie territorial position and applies the local law in terms.
(citations omitted)
In Minister for Foreign Affairs v Magno (1992) 37 FCR 298, French J said at 321:
The principle was at one time associated with a legal fiction that the person and premises of ambassadors were outside the territory of the receiving State: Grotius, Bk II, Ch XVIII-IV 7. See, for example, the Hungarian Supreme Court decision of Re Zoltan Sz noted in A D McNair and H Lauterpacht, Annual Digest of Public International Law Cases [1927-1928], pp 372-373. But that fiction has been long discredited: R v Turnbull; Ex parte Petroff (1971) 17 FLR 438 at 442-444 (Fox J). Contemporary international law draws a distinction between the territory of the receiving State on which the sending State’s mission stands and the sending State’s primary jurisdiction and control over the members of the mission and their activities in the embassy.
I note in passing that the proposition that the premises of a consular post are part of the territory of the sending State seems to be a widely-held misconception, dating back many years in the history of international law but possibly given broader currency, among other things, by an episode of the TV series “The Simpsons” in which the Simpson family visits Australia. Irrespective of its origins, the proposition remains a misconception, and does not help in identifying a basis on which evidence can be received from Canada by audiovisual link, even from within a consular post.
Foreign Evidence Act 1994
Relevant provisions
Reference was also made by the Crown to the Foreign Evidence Act 1994 (Cth). That Act relevantly confers certain powers on “superior” courts to make orders about the taking of evidence from persons outside Australia. The possibly relevant sections are as follows:
3Definitions
(1)In this Act, unless the contrary intention appears:
...
"superior court" means:
(a) the High Court; or
(b) the Federal Court of Australia or the Family Court of Australia; or
(c) the Supreme Court of a State, or the Family Court of Western Australia, when exercising federal jurisdiction; or
(d) subject to subsection (2), the Supreme Court of a Territory (other than the Northern Territory); or
(e)the Supreme Court of the Northern Territory when exercising jurisdiction conferred or vested by an Act of the Parliament.
(2)On and after a day fixed by Proclamation:
(a)the Supreme Court of the Australian Capital Territory ceases to be a superior court for the purposes of this Act except so far as it exercises jurisdiction conferred or vested by an Act of the Parliament; and
(b)any other court of the Australian Capital Territory ceases to be an inferior court for the purposes of this Act except so far as it exercises jurisdiction conferred or vested by an Act of the Parliament.
7Orders for taking evidence abroad
(1)In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order, relating to a person outside Australia:
(a)for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or
(b)for issue of a commission for examination of the person on oath or affirmation at any place outside Australia; or
(c)for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of the person or cause it to be taken.
(2)In deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following:
(a)whether the person is willing or able to come to Australia to give evidence in the proceeding;
(b)whether the person will be able to give evidence material to any issue to be tried in the proceeding;
(c)whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.
8Directions and requests relating to orders
(1)If a court makes an order of the kind referred to in paragraph 7(1)(a) or (b), the court may, at the time of making the order or at a later time, give such directions as it thinks just relating to the procedure to be followed in relation to the examination, including directions about:
(a)the time, place and manner of the examination; and
(b)any other matter that the court thinks relevant.
(2)If a court makes an order of the kind referred to in paragraph 7(1)(c), the court may include in the order a request about any matter relating to taking that evidence, including any of the following matters:
(a)examination, cross-examination or re-examination of the person, whether the person's evidence is given orally, on affidavit or otherwise;
(b)attendance of the legal representative of each party to the proceeding in question and participation of those persons in the examination in appropriate circumstances;
(c)any matter prescribed by the regulations.
Section 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (the Self-Government Act) is also relevant:
48A Jurisdiction and powers of the Supreme Court
(1)The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory.
(2)In addition, the Supreme Court may have such further jurisdiction as is conferred on it by any Act, enactment or Ordinance, or any law made under any Act, enactment or Ordinance.
(3)The Supreme Court is not bound to exercise any powers where it has concurrent jurisdiction with another court or tribunal.
The argument
The argument has the following steps.
(a)The ACT Supreme Court is, for relevant purposes, a superior court under the definition in s 3 of the Foreign Evidence Act. This is because even if a proclamation has been made for the purposes of s 3(2) of that Act (as to which there is no information before me), the jurisdiction being exercised by the ACT Supreme Court in conducting a trial is jurisdiction conferred or vested by s 48A of the Self-Government Act, which is an Act of the Parliament (that is, the Commonwealth Parliament) for the purposes of the definition of “superior court” in s 3(2) of the Foreign Evidence Act.
(b)The ACT Supreme Court, as a “superior court”, is authorised by s 7(1) of the Foreign Evidence Act to make an order for the examination of a person located at a place outside Australia “before” a judge sitting at a place within Australia.
(c)In Bell Group, Owen J at [37] accepted “the submission of the defendants that ss 7 and 8 of [the Foreign Evidence Act] ought to be read in a broad and beneficial way so as to enable the court to take advantage of advances in technology”. His Honour noted as authority supporting this approach the cases of Director of Public Prosecutions v “X” (Unreported, Supreme Court of Victoria, Batt J, 29 March 1994) at 10 and ASIC v Rich [2004] NSWSC 467; 39 ACSR 578 at [43].
(d)Owen J further relied on Director of Public Prosecutions v “X” at 9 and B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 at 104 in concluding that an examination of a witness by audiovisual link is conducted in the place where the judicial officer is sitting and not in the place from which the witness is giving evidence.
Accepting those steps in the argument, the ACT Supreme Court, as a superior court for the purposes of the Foreign Evidence Act, could make an order in this proceeding, under s 7(1) of that Act, for evidence to be taken:
(a)before a judge sitting in Canberra; and
(b)from a witness located in Canada and giving evidence by audiovisual link in response to questions put by counsel appearing in Canberra.
The only possibly suspect step in this argument is the conclusion that the ACT Supreme Court, in dealing with matters arising under ACT laws, is nevertheless exercising jurisdiction conferred by s 48A of the Self-Government Act (ie the Commonwealth Act). However, no basis has been identified which would justify me in concluding that s 48A is not effective according to its terms. Indeed, it is possible that reliance on this argument explains the apparent absence of any relevant enabling provision in the laws of the ACT.
Discretionary considerations
Finally, I note that s 47A of the Federal Court of Australia Act 1976 (Cth) provides an express power for a judge of the Federal Court to receive evidence from a foreign country by audio or video link, and makes various provisions about the exercise of such a power. That section has been the subject of consideration in several cases heard in the Federal Court, including Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd [2014] FCA 544, in which Flick J noted several considerations that he considered might be relevant to a court deciding whether to exercise the discretionary power conferred by s 47A; his Honour said:
11. The exercise of the discretion conferred by s 47A(1) must unquestionably be guided by the facts and circumstances of the individual case in which permission is sought to adduce evidence by way of video link. It would be unwise, if not impossible, to attempt any exhaustive list of considerations relevant to the exercise of discretion. Courts have, accordingly, resisted any temptation to attempt to do so: e.g., Australian Securities and Investments Commission v Rich [2004] NSWSC 467 at [20] to [39], [2004] NSWSC 467; (2004) 49 ACSR 578 at 583 and 587 per Austin J; Kirby v Centro Properties Ltd [2012] FCA 60 at [10], [2012] FCA 60; (2012) 288 ALR 601 at 604 to 605 per Gordon J. Subject to that necessary qualification, considerations which may assume relevance would include:
· the extent to which the proposed witness seeks to give evidence of facts relevant to the dispute as opposed to opinions founded upon, or largely founded upon, agreed facts or assumptions;
· whether the parties are in agreement as to the utility in allowing evidence to be given by way of video link;
· whether the proposed evidence is centrally relevant to the issues to be resolved or more tangential to those matters of real dispute;
· the extent to which any cross-examination may be inhibited by the absence of the witness being present;
· the relevance of the evidence the subject of any cross-examination – the more limited the cross-examination and the more questionable the relevance of the evidence the more limited may be the prejudice to the cross-examiner;
· the reasons proffered by the witness as to the inability to come to Australia; and
· the practical impediments that a refusal to allow cross-examination to proceed by way of video link upon the ability of a party to present its case [sic].
Considerations in any particular case could also include:
· factors peculiar to the proposed witness, including ill-health or an inability to freely travel to and depart from Australia; and
· the extent to which the Court itself may consider that it would be assisted by evidence being given in person.
The overriding consideration must, however, forever remain what is considered by the Court to be in the best interests in the administration of justice, including the need to ensure that justice is done as between the parties.
It is unnecessary to canvass all those matters specifically, but I note that many of the considerations listed by Flick J would in the current circumstances seem to support the exercise of a power to receive Dr Westmore’s evidence from overseas, and, with one possible exception, none of them seems to militate against the receipt of that evidence in this case.
That possible exception is that Dr Westmore’s explanations for being unavailable in Australia during the course of the trial are less convincing than some other explanations might be; for instance, he does not claim to have health problems that could make a brief return to Australia problematic, and nor has any useful detail been provided about the nature of any Canadian commitments that would be affected by a brief return to Australia.
On the other hand, Dr Westmore may in fact have performed the terms of his original engagement as an expert witness by giving evidence at the first trial, and may have accepted a re-engagement subject to availability; thus it may be that the Crown would have no further basis to compel his attendance at court (in contrast to a civilian witness whose role in a trial arises from his or her role in the events giving rise to the trial). No doubt the Crown would be reluctant to fly Dr Westmore back to Australia for a day or so, even if he were willing to return, and would be very hesitant to seek to bring him back via some kind of extradition process (even if at this stage he has been, or could still be, served with a subpoena to appear, and even if he would thereby be subject to extradition if he did not appear voluntarily).
Conclusions
I am still unpersuaded that I have any explicit power to order that Dr Westmore’s evidence be taken by audiovisual link from a location in Vancouver, Canada. On the other hand, for reasons set out above, I am satisfied that there is no clear obstacle to the making of such an order, that there are many good reasons for making such an order, that the kinds of considerations addressed in the context of other relevant legislation would support the making of an order, and that the order should be made in the interests of the administration of justice in this jurisdiction. Accordingly, I shall make an order, and any consequential directions, along the lines sought by the Crown.
Need for legislative clarification
However, I regard the uncertainty canvassed in this judgment as an unsatisfactory situation. It would be desirable for the legislature to clarify whether ACT courts are not intended to be able to receive evidence by audio or audiovisual link from locations outside Australia (other than New Zealand, which is provided for in the Evidence and Procedure (New Zealand) Act 1994 (Cth) and the Court Procedures Rules 2006 (ACT), div 6.10A.4), or whether such evidence should be receivable in particular circumstances and depending on the court’s satisfaction as to specified matters. The provisions of s 47A of the Federal Court of Australia Act 1976 (Cth) or pt 1A of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) might provide a useful starting point for appropriate legislation.
Clarification of this issue would save the kind of judicial and other time and energy that has been in the past, and will otherwise be in the future, devoted to this somewhat sterile, albeit practically important, question.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Nish Perera Date: 11 August 2017 |
[1] The Rules were amended with effect from 11 October 2013 to replace the former div 6.10.7 with div 6.10A.4, but no consequential amendment seems to have been made to the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
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