Regina v Darwiche

[2006] NSWSC 928

CITATION:	Regina v Darwiche & Ors [2006] NSWSC 928
HEARING DATE(S):	19/6/06, 20/6/06, 21/6/06, 22/6/06, 26/6/06, 27/6/06, 28/6/06, 29/6/06, 30/6/06, 3/7/06, 4/7/06, 5/7/06, 6/7/06, 7/7/06, 10/7/06, 11/7/06, 12/7/06, 13/7/06, 14/7/06, 17/7/06, 18/7/06, 19/7/06, 20/7/06, 24/7/06, 25/7/06, 26/7/06, 27/7/06, 28/7/06, 31/7/06, 1/8/06, 2/8/06, 3/8/06, 4/8/06, 7/8/06, 8/8/06, 9/8/06
JUDGMENT DATE :	18 July 2006
JUDGMENT OF:	Bell J at 1
DECISION:	Evidence of witness, Khaled Taleb, to be taken by audio-visual link
CATCHWORDS:	Witness with a speech impediment - evidence given via audiovisual link - criminal trial
LEGISLATION CITED:	Evidence (Audio and Audio-Visual Links) Act 1998
CASES CITED:	R v Goldman [2004] VSC 165; 148 A Crim R 40 R v Ngo [2001] NSWSC 339 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) 1999 73 ALJR 306
PARTIES:	Regina Adnan Darwiche (Accused) Nasaem El-Zeyat (Accused) Ramzi Aouad (Accused) Abass Osman (Accused)
FILE NUMBER(S):	SC 2005/992; 2005/1252; 2005/993; 2005/997; 2005/1366
COUNSEL:	LLoyd Babb / John Pickering (Crown) John Doris (Adnan Darwiche) Gregory Stanton (El-Zeyat) Glen Whitehead (Aouad) Linda McSpedden (Osman)
SOLICITORS:	S Kavanagh (Crown) Yazbek Lawyers (Adnan Darwiche) Theo Voros (El-Zeyat) Baird & Associates (Aouad) Michael Croke (Osman)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Tuesday 18 July 2006

2005/992 -
2005/1252 - Regina v Adnan DARWICHE
2005/993 - Regina v Nasaem EL-ZEYAT
2005/997 - Regina v Ramzi AOUAD
2005/1366 - Regina V Abbas OSMAN

JUDGMENT – application to take the evidence of Khaled Taleb by audio-visual link

1 BELL J: On 4 July 2006 I directed that the evidence of Khaled Taleb be taken from a location outside the courtroom by audio-visual link pursuant to s 5B(1) of the Evidence (Audio and Audio-Visual Links) Act 1998 (the Act). These are my reasons for giving that direction.

2 Khaled Taleb (the witness) has a stutter. The application was made on the basis that his evidence would be more readily understood and complete if taken by audio-visual link.

3 The Crown tendered the report of Sue Brown, a speech pathologist, dated 7 April 2006 in support of the application. Ms Brown gave additional oral evidence and was cross-examined. The Crown tendered the transcript of evidence given by the witness on previous occasions. These included the transcript of evidence given by him at a voir dire hearing on 20 April 2006 at the trial of Adnan Darwiche, Naseam El Zeyat and Ramzi Aouad, on an indictment that charged them with offences relating to the murder of Ahmed Fahda. It also included the transcript of evidence given by the witness at a Basha hearing with respect to the present indictment. His evidence on that occasion was taken by audio-visual link over a lengthy period.

4 The statements of the witness made on 6 February 2006 and 18 March 2006 were tendered on the application. The witness is central to the Crown case in support of each of the counts in the indictment. He gives evidence of admissions made in his presence by each of the accused. He has been indemnified against prosecution for a very large number of serious offences of violence. His credit will be the central issue at the trial.

The evidence

5 Ms Brown has practiced as a speech pathologist since 1978. Throughout her career she has worked with adults and children who stutter. She has participated in intensive stutter programs for adults and she has seen adults and children with this condition in therapy.

6 Ms Brown assessed the witness at a consultation conducted on 6 April 2006. She concluded that he has a genuine stutter, which would affect his ability to communicate his ideas and information in a way that could be easily understood. The history that he gave, and his description of the factors that affect his communication were, in Ms Brown’s opinion, consistent with the literature and with her clinical experience. She observed that his stutter is exacerbated when he is anxious, nervous, under pressure and scared. She reported that when he discussed highly emotive personal issues he had become extremely dysfluent. At other times he had been fluent and able to express himself quite clearly. Ms Brown reported that the witness had a lot of difficulty coordinating his breathing, voice and speech when stuttering. She considered that his impediment would make it difficult for him to be understood clearly at times. In oral evidence she said that stress significantly affects a stutterer’s ability to plan and sequence the movements required for verbal expression at a neurological level. Stutterers are known to have higher anxiety levels than the general population. She described a cyclical effect in which increased anxiety inhibits motor control: people become anxious, stutter more, and this in turn increases anxiety (T 666). Ms Brown considered that decreasing the level of stress experienced by the witness would maximise his ability to convey information as effectively as possible.

7 On 20 April 2006, when the witness gave relatively brief evidence in the courtroom, his stutter was prominent and he was difficult to understand. This difficulty was increased at times by a lack of voice projection and by physical gestures that accompanied the stutter, rolling his eyes upwards and jerky head movements.

8 Ms Brown had noted that the witness’ difficulty in coordinating his breathing affected his ability to project his voice. In her opinion this difficulty would be relieved by the reduction in stress in giving evidence from a location outside the courtroom. She observed that directions to speak up would be likely to increase his stress level and the incidence of dysfluency. She commented that it is common for stutterers to have behaviours that are associated with stuttering: an individual might find that blinking helps him or her to articulate a word. Such a mannerism becomes a learned association and is persisted with even when it no longer helps with speech.

9 Ms Brown said that stutterers tend to avoid the use of words that they know may cause them to stutter. Typically, they will try to use simpler words.

The parties’ submissions

10 The court must not make such a direction under s 5B(1) of the Act in any of the circumstances specified in subs (2)(a) – (d). Of these it is only necessary to refer to subs (2)(c), which provides that the court must not make a direction if it is satisfied that the direction would be unfair to the party.

11 The making of the direction was opposed by each of the accused. It was submitted that taking the evidence of the witness by audio-visual link would be unfair to the accused.

12 Where a party opposes the making of a direction for taking evidence by audio-visual link the direction must not be made unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so: s 5B(3).

13 It was contended on behalf of each accused that the Crown had failed to establish that it was in the interests of the administration of justice for the evidence of the witness to be taken by audio-visual link.

14 The accused submitted that it would be unfair to take the evidence by audio-visual link because the jury would not have the opportunity to assess the witness’ demeanour as well as if he gave his evidence in the courtroom. It was submitted that one notable feature of his presentation on 20 April, when he gave evidence in the courtroom, was his reluctance to look at the accused. It was submitted to be open to the jury to draw an inference as to his honesty and reliability from his unwillingness to look at those whom he was accusing. It was also submitted that any increase in the frequency of stuttering might be taken into account in assessing his honesty and reliability.

15 Taking the evidence by audio-visual link necessarily means that the jury will not observe any reluctance that the witness may exhibit in looking at the accused. The Crown Prosecutor submitted that this did not occasion any unfairness to the accused. He pointed out that a number of inferences might be drawn from any observation that the witness chose not to look in the direction of the accused. He submitted that the jury could not draw any useful conclusion from such an observation. He referred to the decision of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) 1999 73 ALJR 306 and, in particular, to the doubts about the reliability of the assessment of demeanour in the scientific studies, which are discussed by Kirby J at 328-329; [88] 4. This is a jury trial and it is within the jury’s province to arrive at its factual determinations upon an assessment of the demeanour of witnesses whether or not that process of reasoning is scientifically sound. However, I did not consider the inability to observe whether the witness avoids eye contact with the accused compromised their fair trial. Any reluctance exhibited by a witness to look at an accused, is an observation that may be more or less open depending upon the layout of the court. In some courts the dock will be in the line of vision of a witness looking at counsel in the course of giving evidence. In other courts the layout is such that no occasion arises for the witness to look in the direction of the dock.

16 The accuseds’ complaint was directed more generally to the restricted opportunity to observe the witness’ body language. Evidence given by audio-visual link does not allow the jury the same opportunity to observe a witness’ physical presentation as evidence given in the courtroom. It may be that some jurors have a better opportunity to observe the facial responses of a witness who is giving evidence by audio-visual link than one who is seated in the witness box. I accepted that there are differences between evidence that is given in the courtroom and evidence given by audio-visual link. However, I considered that, in light of the quality of the audio-visual equipment, the jury would not be deprived of the opportunity to make an adequate assessment of the witness’ demeanour.

17 It was submitted on behalf of the accused that if the witness were permitted to give evidence by audio-visual link it would afford him a measure of protection to which he was not entitled. Counsel for the accused, El Zeyat, submitted that, difficult as it may be for the witness to give his evidence in the courtroom, it was the mantle that he had taken on (T 768). He submitted that I would find the witness’s evidence could be taken in the courtroom, albeit with difficulty.

18 The witness is giving evidence in the Crown case under an indemnity. It was not submitted that he would not give evidence if the Court did not permit him to do so by audio-visual link. In this respect the present application differed from that with which the Court was concerned in R v Ngo [2001] NSWSC 339.

19 It was not in issue that the witness suffers from a genuine stutter, nor that his evidence on 20 April had been difficult to understand. It was submitted that the witness might have exaggerated the extent of his speech difficulties when he gave evidence on that occasion. I did not draw that inference from my observations of his evidence given in court and by audio-visual link. I was satisfied that the witness’ disability affects his ability to communicate. In these circumstances I did not approach the question of whether the witness’ evidence should be taken by audio-visual link (which I was satisfied would be likely to minimise his difficulty) as conferring a benefit or form of protection on him.

20 I took into account the interests of the accused in having the evidence of this critical witness presented in the courtroom: R v Goldman [2004] VSC 165; 148 A Crim R 40 per Redlich J at 47 – 49. However, since I was not of the opinion that to take his evidence by audio-visual link would occasion unfairness, having regard to the quality of the equipment, I did not consider this to be determinative in dealing with an application under

s 5B(1) of the Act in relation to a witness with a disability.

21 When the witness gave evidence by audio-visual link at the Basha hearing his stutter was apparent from time to time. It was accompanied by eye rolling and head jerking. Nonetheless he could clearly be understood. I approached the question of whether it was in the interests of the administration of justice for his evidence to be given by audio-visual link upon an acceptance that the evidence would be more comprehensible if given in that way. I did not consider that it worked unfairness to the accused to take the evidence of the witness in conditions that served to lessen the effect of his disability on his capacity to communicate effectively.

22 In considering the interests of the administration of justice I also took into account Ms Brown’s evidence that stutterers tend to avoid using words that cause difficulty. The witness is expected to give evidence of conversations. I considered that it was important that give his evidence as best he is able by reference to the words that he says were used and not in a contracted form to avoid the use of words that may cause him difficulty.

23 For these reasons I was satisfied that it was in the interests of the administration of justice for the evidence of the witness to be taken by audio-visual link.

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