The Queen v Bravos

[2020] NTSC 33

CITATION:The Queen v Bravos [2020] NTSC 33

PARTIES:THE QUEEN

v

BRAVOS, Peter

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:21832399

DELIVERED ON:  21 May 2020

HEARING DATE:  21 May 2020

JUDGMENT OF:  Burns J

CATCHWORDS:

CRIMINAL LAW – Application – Application for a witness to give evidence by AVL – application refused – written reasons for decision – whether the making of the direction would be unfair to any person

Criminal Code 1983 (NT) s 192(3)
Evidence Act 1939 (NT) s 49E

REPRESENTATION:

Counsel:

Crown: N Papas QC

Accused: J Lawrence SC

Solicitors:

Crown:Office of the Director of Public Prosecutions

Accused:Robert Welfare & Associates

Judgment category classification:    B

Judgment ID Number:  BUR2001

Number of pages:  5

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Bravos [2020] NTSC 33
No. 21832399

BETWEEN:

THE QUEEN

AND:

PETER BRAVOS

CORAM:    BURNS J

REASONS FOR JUDGMENT

(Delivered 21 May 2020)

[1]        On 21 May 2020, I refused an application by the Crown for a witness, who I will refer to as HN, to give evidence at the trial of the accused by way of audio-visual link (AVL) from Melbourne, Victoria. At the time I said that I would provide my reasons in writing in due course. These are those reasons.

[2]        The accused is currently awaiting trial on two counts of having sexual intercourse without consent, contrary to s 192(3) of the Criminal Code 1983 (NT). This offence carries a maximum penalty of imprisonment for life. The trial of the accused is presently scheduled to commence on 27 July 2020 with an estimated duration of four weeks.

[3] The application for HN to give her evidence by AVL was made pursuant to s 49E of the Evidence Act 1939 (NT) (“Evidence Act”) which grants this Court power to direct that the evidence of a person be given by AVL from any place within or outside the Northern Territory. The restrictions on giving such a direction are found in ss 49E(2) and (3) of the Evidence Act. The Court cannot give the direction unless it is satisfied that the necessary facilities are available and the evidence can more conveniently be given from the other place: s 49E(2). In addition, the Court must have regard to whether the making of the direction would be unfair to any person: s 49E(3).

[4]        The basis of the application may be summarised as follows. HN currently resides in Melbourne and practises at the Melbourne Bar. She is a single mother with a 12 year old daughter. She has no one in Victoria who can care for her daughter if she, HN, is required to travel to Darwin to give her evidence; she will need to bring her daughter with her to Darwin. HN is concerned that her daughter’s schooling and extra‑curricular activities will be interrupted. She is also concerned that her daughter will have to wait in the precincts of the Court while she is giving her evidence. HN is further concerned that there may be interference with her work commitments.

[5] There was no suggestion that the necessary facilities for taking HN’s evidence by AVL are not available in Melbourne. I have no doubt that the matters raised by HN make it more convenient for her evidence to be given by AVL from Melbourne. There can be no doubt that requiring HN to travel to Darwin to give evidence will also be relatively expensive for the Crown; certainly taking her evidence by AVL would be much cheaper. On balance, I am satisfied that it would be more convenient to take her evidence by AVL than to require her to attend Darwin personally. The remaining question was whether the making of the direction would be unfair to any person, or whether there was some other reason for declining to make the orders: s 39E(3) of the Evidence Act.

[6]        Senior counsel for the accused made the broad submission that the taking of evidence by means of AVL was a “second rate” means of taking evidence. If that was meant as a general proposition, I do not agree. The legislature has provided for the taking of evidence by AVL in particular circumstances and, indeed, in some circumstances the pre-recording of evidence to be played to the jury during a trial is mandated. It follows that the giving of evidence by a witness from a place other than the courtroom cannot in all cases be considered to be an inferior method of adducing evidence.

[7]        Much will depend on the circumstances of the case. In the present case, HN will not give direct evidence of the events that are alleged to constitute the charges. From the Crown’s perspective, she will give evidence of her dealings with the complainant prior to the complainant making a criminal complaint against the accused. From that perspective, the evidence to be given by this witness could be characterised as peripheral to the main issue, a circumstance which would militate in favour of making the order sought by the Crown.

[8]        It is plain that the accused does not view the proposed evidence of HN in this light. The accused considers HN to be a crucial witness. As I understand it, the case for the defence is that any sexual activity between himself and the complainant was consensual, and that statements made by the complainant to third parties the day after the relevant events will support that proposition. The case for the accused is that the complainant has changed her version of the events in the years following 2004. Whether the complainant is deliberately lying or whether she now believes (the accused says) the false version that the sexual activity was non-consensual, the accused cannot say. The accused will, however, assert that pressure was brought to bear on the complainant by HN to make a criminal complaint against the accused. Depending on the evidence given by HN, it may be suggested that pressure was brought to bear on the complainant to give false evidence, or that pressure was simply brought to bear on her to make a complaint in circumstances where the complainant was “stuck with” a version of the events which she had previously given to others and which implicated the accused in the charged offences.

[9]        It appears to be accepted by the Crown that the accused will be entitled to cross‑examine witnesses at his trial with a view to establishing that the present allegations had their genesis in rivalry and ill feeling towards the accused by other members of the NT Police Force and perhaps others. Where the accused contends that the version of the relevant events given by the complainant is untrue, and that those with malice towards him are close to the complainant and/or have sought to influence her, evidence of those facts may well be important to the defence case. It is also important to note that it cannot be known what further evidence of importance to the defence case on this issue may emerge during the evidence of other witnesses at the trial.

[10]      In light of these considerations, I was satisfied that there was potential for unfairness to the accused if the witness were permitted to give evidence by AVL. For this reason, I refused the application.

[11]I direct that these reasons are not to be published, except to parties, until the conclusion of the accused’s trial.

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