Tremeer v City of Stirling

[2003] WADC 173

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   TREMEER -v- CITY OF STIRLING & ANOR [2003] WADC 173

CORAM:   WILLIAMS DCJ

HEARD:   1 AUGUST 2003

DELIVERED          :   Delivered Extemporaneously on 1 AUGUST 2003 typed from tape and edited by Trial Judge

FILE NO/S:   CIV 3402 of 1993

BETWEEN:   GAVIN JOHN TREMEER

Plaintiff

AND

CITY OF STIRLING
Defendant

GLENWOOD SYSTEMS PTY LTD
Third Party

Catchwords:

Application to take evidence of a witness out of the jurisdiction by video link

Legislation:

Evidence Act 1906, s 121

Result:

Application granted

Representation:

Counsel:

Plaintiff:     Mr A J Castley

Defendant:     Mr C C Rimmer

Third Party                   :     Mr L S Panotidis

Solicitors:

Plaintiff:     Bradford & Co

Defendant:     Jarman McKenna

Third Party                   :     Cocks Macnish

Case(s) referred to in judgment(s):

Woodside Petroleum Development Pty Ltd and Others v H & R – E & W Pty Ltd; Library No 970206; 28 April 1997

Case(s) also cited:

Nil

1. WILLIAMS DCJ: This is an application on the part of the defendant to take the evidence of a Dr Brown, a resident in the United Kingdom, by video-link. Section 121 of the Evidence Act 1906 gives the court the power to direct the evidence to be taken by video-link from a person outside the courtroom and outside the state. 

2. The court is not to make that direction unless it is satisfied that the video-link is available or can reasonably be made available and it is in the interests of justice to do so. 

3. The video-link is available, the evidence of that is set out in par 20 to par 27 of the affidavit of Bartholomaeus sworn 20 June 2003. 

4. It is the submission of counsel for the defendant that the cost of having Dr Brown attend Perth to give evidence is significant, said to be somewhere between $11,000 and $20,000.  The nature of Dr Brown's evidence has been disclosed to the plaintiff.  Dr Brown is an expert medical witness.  He has provided a statement in which he explains the reasons why he recalls attending on the plaintiff during the course of the surgery on his spine.

5. It is the submission of counsel for the defendant that to the extent the trial judge needs to assess Dr Brown's credibility, he or she can do so by seeing and hearing Dr Brown give evidence by video-link. 

6. The plaintiff has made a number of submissions in relation to this matter.  Paragraph 9, par 10 and par 11 of the plaintiff's submissions relate to matters that have occurred in the past. That does not seem to me to be relevant to the situation as to whether it is in the interests of justice for Dr Brown's evidence to be adduced by way of video-link. 

7. In par 13, the plaintiff says, that the sole reason for the extra 5 days of trial which will put the plaintiff to considerable extra expenses is the issue of serum osmolality and whether the plaintiff was intoxicated at the time of the accident.  This is an issue which only arose at the earliest in approximately November 2001.  The point being made is that will increase costs of the action.   It needs to be remembered, that if Dr Brown is required to come here and give evidence then somebody will also be paying the cost for that.  Whether in the end it is the plaintiff or the defendant or even the third party remains to be seen but certainly that will increase the costs.

8. Paragraph 17 to par 20 appear to relate to costs.  Again, it needs to be remembered that what the defendant is attempting to do is to reduce the costs, initially for the defendant but that may also be to the benefit of the plaintiff.  In par 23, the defendant says the letter from Dr Brown does not support the defendant's assertion that the plaintiff was intoxicated at the time of the injury.  The letter seeks to introduce the possibility of intoxication by inference only and without direct evidence.

9. If that is the case, in my view, it would be apparent to the trial judge and that, in my view, is an argument making it less necessary for Dr Brown to attend.  Paragraph 24 refers to the fact that Dr Brown is speaking about a recollection some 14 years ago.  In my view, that is an issue on which cross‑examination can be made.  It goes to reliability and credibility but it will be immediately apparent to any judicial officer that the witness is talking about an event which was that length of time ago. 

10. In my view, video evidence has come a long way even since the two decisions referred to me by counsel here.  It is the case that in this court juries watch videos of execution of search warrants by police, videos of interviews with accused persons by police, videos from remote rooms that are directly part of the trial process and also pre-recorded videos.  They see video-link ups in other parts of the state, Australia and overseas.  In relation to all of that evidence they are required to assess credibility. 

11. I do not wish to suggest that this matter is less important to the parties than criminal matters but certainly in relation to criminal matters the liberty of the citizen is at stake and I really ask the question, if these things can be done so readily in crime, why can they not be done in this situation? 

12. In my view, to the extent that the trial judge needs to assess credibility, he or she can do so by seeing and hearing Dr Brown give evidence by video.  As Anderson J said in Woodside Petroleum Development Pty Ltd and Others v H & R – E & W Pty Ltd; Library No 970206; 28 April 1997 the difference between a witness giving evidence in person and seeing a witness give evidence by video-link for the purposes of assessing credibility are probably marginal.  I would agree with that.  In my view there are no reasons raised by the plaintiff as to why Dr Brown's evidence should not be taken by video-link and I allow the application.