William Alexander Brodie v Michael Scot Streeter

[2003] ACTSC 88

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Sullivan
Citation:	[2024] ACTSC 327
Hearing Dates:	9 September 2024 – 24 September 2024
Decision Date:	16 September 2024
Before:	Baker J
Decision:	See [34]
Catchwords:	CRIMINAL LAW – application for witnesses to give evidence via audio-visual link – application opposed by defence for some witnesses – necessary facilities for AVL – more convenient for
witnesses to give evidence by AVL – no unfairness to accused – where giving evidence AVL would reduce cost to a party –
application granted
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 32
Cases Cited:	Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA
250
Campaign Master (UK) Ltd v Forty Two International Pty Ltd
(No 3) [2009] FCA 1306; 181 FCR 152
In the matter of Mulberry Capital Management Pty Ltd v Shen -
AVL Application [2022] NSWSC 1023
KN v R [2017] NSWCCA 249; 95 NSWLR 767
R v AS [2023] NSWSC 885
R v Warwick (No.51) [2018] NSWSC 1555
Brodie v Streeter [2003] ACTSC 88; 180 FLR 176
Parties:	Director of Public Prosecutions (Applicant)
Jake Sullivan (Respondent)
Representation:	Counsel
T Hickey (Applicant)
J Pappas (Respondent)
Solicitors
ACT Director of Public Prosecutions (Applicant) Hugo Law Group (Respondent)
File Number:	SCC 322 of 2022

EDITED EX TEMPORE REASONS

BAKER J:

Introduction

1.       By an application filed in Court this morning, the prosecution made an application under

s 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) for the

following witnesses to give evidence via audio-visual link (AVL):

(a) [redacted]

(b) [redacted]

(c) [redacted]

(d) [redacted]

(e) [redacted]

(f) [redacted]

(g) [redacted]

(h) [redacted]

1. In the affidavit of the prosecutor’s instructing solicitor, supplemented by oral information

   provided from the bar table, the prosecutor advised the court that arrangements had

   been made for [redacted], [redacted], [redacted], [redacted] and [redacted] to give

   evidence from Defence bases and police stations in other states and territories. I was

   informed that arrangements had not yet been made for [redacted] and [redacted] to give

   evidence via AVL. I understood those applications are not pressed at the present time.

3.       Mr Pappas, who appears for the accused, consented to the application with respect to

[redacted], [redacted] and [redacted]. I made orders under section 32 of the EMP Act

permitting each of these witnesses to give evidence via AVL, having been satisfied of

each of the requirements under that section. However, Mr Pappas opposed the making

of such an order with respect to [redacted], [redacted], [redacted] and [redacted] on the

basis that there would be unfairness to the accused if these witnesses were not required

to give evidence in person.

4.       Mr Pappas noted that each witness is a complaint witness, and that such evidence is

particularly important in trials relating to sexual assault allegations. He submitted that it

would be unfair to the accused if these witnesses were permitted to give evidence via

AVL. In support of this submission, Mr Pappas provided a printout of a report of an

Australian Bar Association Conference in which Bell CJ of the New South Wales Supreme Court cautioned against the use of remote hearings in criminal trials. However,

as Mr Pappas fairly acknowledged, his Honour was there primarily concerned with the

practice of holding criminal trials entirely by remote methods, as occasionally occurred

during COVID-19, rather than the question of whether a witness should be permitted to

give evidence via AVL pursuant to the statutory requirements of s 32 of the EMP Act.

Factual Background

5.       On 6 August 2024, the prosecution sent an email to the accused’s legal representative,

noting that various witnesses resided interstate, and asking whether the accused would

consent to the evidence of those witnesses being given by way of AVL. In an email sent

on 7 August 2024, the legal representative for the accused indicated that there would be

no objection to the evidence of one witness, [redacted], being given by way of AVL, but

that the accused did not consent to the other witnesses giving evidence via this means.

That was the end of the discussion on that issue for the time being. The prosecution

arranged for various witnesses to be flow to Canberra to give evidence during the trial.

6.       For reasons which were not the fault of either party, the trial proceeded well beyond the

five-day estimate that was provided to court. The Court did not sit on Wednesday 11

September 2024 owing to an illness of Mr Pappas. The complainant’s cross-examination

did not conclude until mid-morning on Friday 13 September 2024. The remainder of

Friday was taken up by other witnesses who either appeared in person or via AVL from

a remote room within the court building in accordance with legislative requirements in

this jurisdiction.

7.       On the evening of 11 September 2024, that is the day that Mr Pappas was unwell, the

prosecutor’s instructing solicitor sent an email to the accused’s legal representative

which advised that, given the unpredictability of the present circumstances, a decision

had been made for various witnesses to be flown home and that AVL applications would

be made for various witnesses, including those set out at one above.

1. In an email sent the following morning, the accused’s legal representative advised the

   prosecution that the trial would be ready to resume that day. The email expressed

   concern that a “unilateral decision” had been made to excuse witnesses who had been

   required to attend court for the week. The email requested that the prosecution make all

   required witnesses available in person and advised that any AVL application would be

   opposed. In particular, the email noted that there did not appear to be any basis for the

   witnesses to give evidence remotely other than ‘potential inconvenience’.

Section 32 of the Evidence (Miscellaneous Provisions) Act

9.       The power for the Court to make an order for a witness to give evidence via AVL from

another jurisdiction within Australia is found in s 32(1)(b) of the EMP Act, which permits

the Court to direct that a person give evidence to the court by audiovisual link “from a

place outside the ACT but within Australia”.

10. Sections 32(2), 32(3) and 32(4) of the EMP Act provide as follows concerning the

prerequisites to the making of an order under s 32(1)(b):

(1)

The court may make the direction only if satisfied that—

(a)	the necessary facilities are available or can reasonably be made available; and
(b)	it is in the interests of the administration of justice to make the direction.

(2)

In considering whether it is in the interests of the administration of justice to

make the direction, the court may consider—

(a)	whether the evidence or submission can more conveniently be given or made from the place; and
(b)	whether the making of the direction is unfair to any party opposing the making of the direction; and
(c)	whether the making of the direction could support court efficiency by reducing costs or delay to the proceeding; and
(d)	anything else that the court considers appropriate.

(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.

Consideration

11.    I am satisfied that the necessary facilities are available for [redacted], [redacted],

[redacted] and [redacted] to give evidence via AVL. The court is equipped with AVL

facilities which have been used throughout this trial. It is proposed that [redacted] give

evidence from Newcastle Police Station which is also equipped with those facilities. I

have been informed that the AVL room at Newcastle Police Station is available for use

during this trial.

12.     It is proposed that [redacted], [redacted] and [redacted] give evidence via AVL from

Defence Barracks in Darwin. I have also been informed that the AVL facilities at this

place are available for use during this trial.

13.     I am also satisfied that it is in the interests of the administration of justice for a direction

to be given with respect to these witnesses, permitting the use of AVL. In reaching this

conclusion, I have taken into account the following matters.

It is more convenient to make the direction sought

14.     The phrase “more convenient” is an expression used in a wide sense to include the

convenience of the court, the parties and the witness in question: Brodie v Streeter [2003]

ACTSC 88; 180 FLR 176 at [15]. This is an important, although not overriding,

consideration in every case. [redacted] was residing in Newcastle at the time of the trial.

[redacted], [redacted] and [redacted] are all presently residing in Darwin as a result of

defence posting. Travel to Canberra for each witness would be time-consuming. In the

case of the Darwin witnesses, it would involve travel in excess of eight hours each way.

15.     The witnesses, in particular the Darwin witnesses, have already disrupted their lives by

travelling to Canberra and waiting to give evidence in this trial. Through no fault of the

witnesses, or the prosecution, it was not possible for them to give evidence in person

during that time that the Court had first been provided, of the five-day estimate. It was

necessary in those circumstances for the witnesses to be returned to their home state,

rather than being required to remain in this jurisdiction for the weekend.

1. The Court should not lightly require further interruption to these witness’ personal and

   professional lives by requiring them to travel interstate to give evidence in this trial. In

   these circumstances, I am satisfied that the evidence can be more conveniently given

   by these witnesses by AVL rather than giving evidence in court.

The giving of a direction would not be unfair

17.     I do not accept that it would be unfair to the accused for the evidence to be given via

AVL.

18.     The witnesses for whom a direction is sought are all complaint witnesses. Their evidence

is limited in scope, and their credibility is unlikely to be in issue in the proceedings.

19.     In any event, even if one or more witness’ credibility becomes an issue to some extent,

I am satisfied that the accused will not be unfairly disadvantaged by these witnesses

giving evidence via AVL.

20.     It is to be borne in mind that the assessment of the credibility of a witness is an exercise

which depends on “many more features than just an observation of the witness’

demeanour”: R v Warwick (No.51) [2018] NSWSC 1555 at [27]. Further, my own

experience, consistent with that of judges in this jurisdiction and other courts is that, in

most cases, evidence given by AVL is not less effective than evidence given in person.

There are numerous decisions where it has been held that the demeanour of a witness

can be adequately assessed by AVL: see KN v R [2017] NSWCCA 249; 95 NSWLR 767

at [67] and the cases cited therein.

21.     The fact that this trial is being conducted before a jury does not alter these observations.

As Wilson J recently observed in R v AS [2023] NSWSC 885 at [19]:

Evidence taken by such means has become much more familiar in recent years, corresponding to some extent with the greater use of electronic communication in the wider community. In ordinary society most people are now quite used to face to face communication at a distance by screen, by the use of AVL or some other similar means. Telephone calls incorporating a video facility are common, as is the use of applications designed to promote communication using a computer or camera enabled telephone. At the height of the COVID-19 pandemic, in 2020 and 2021, such measures were the only means of seeing friends or loved ones for many people. Partly because of technological advancement intended to meet the difficulties posed by restrictions upon movement and association in those years, most social activity and business can now be, and routinely is, conducted through a Smart Phone. It is possible to consult a doctor, hold a business conference, or chat with friends, through a camera and screen.

22.     I have borne in mind that in some circumstances, the giving of evidence via AVL may

deprive the cross-examiner (and the Court) of the “reassurance that the gravity and

immediacy of the moment, and of the supervising presence of the judge, are not lost on

the witness”: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No

3) [2009] FCA 1306; 181 FCR 152 at [78], cited in Antov v Bokan (No 2) [2019] NSWCA

250; 101 NSWLR 142 at [50].

23.     In my experience, this can be a significant issue where civilian witnesses are permitted

to give unsupervised evidence, particularly in their homes. This concern does not carry

particular weight, however, in the present case the witnesses will give evidence from

Defence barracks and a police station which are places which themselves emphasise

authority.

24.     The witnesses are all defence personnel, who well understand the gravity of giving

evidence under an oath or affirmation. Each witness will also be reminded at the

commencement of their evidence that they are giving evidence in a Supreme Court

before a judge and jury. I am satisfied that these matters will reinforce the gravity and

immediacy of the oath or affirmation that they will take.

25.     I am satisfied that cross-examination can proceed relatively smoothly with the use of

modern technology. Whilst modern technology is not perfect, the issues which historically

plagued the giving of evidence remotely, such as unstable connections and transmission

lag times, are no longer as significant as they once were: In the matter of Mulberry Capital

Management Pty Ltd v Shen - AVL Application [2022] NSWSC 1023 at [20].

26.     Moreover, this Court is equipped with individual screens for each juror, as well as larger

screens in the courtroom which will enable each witness to be seen and heard by the

accused, counsel, the jury and members of the public. If at any stage of the examination or cross-examination the technology fails, it is open under the legislation for me to revoke

the direction or any direction under this provision.

27.     The prosecutor has confirmed that facilities will be made available to enable witnesses

to be shown documents during their chief and cross-examination. In particular,

documents may be emailed to the police station and printed out for the witness to be

shown. Documents may also be shown to each witness via the Court’s document viewer:

see similarly Warwick at [30].

28.     In this trial a number of witnesses have already given evidence via AVL and was a result

of the consent of the accused as a result of legislative requirements. This includes the

complainant who is the most critical witness in this trial who gave evidence, including

cross-examination, via an AVL link for in excess of a day.

29.     In accordance with the legislative requirements of this jurisdiction, the jury has been

directed that they are not to give the evidence of any of these witnesses any more or

less weight as a result of it being given in this way and they are not to draw any adverse

inference against the accused as a result of the evidence not being given in person.

There is no reason to suppose that the jury would not follow these directions.

The direction would reduce cost to the proceeding

30. Section 32(2)(c) of the EMP Act requires the Court to consider “whether the making of

the direction could support court efficiency by reducing costs or delay to the proceeding”.

1. The “costs” referred to in s 32(2)(c) encompass not only cost to the Court but also the

   cost to the parties to the proceedings. If the witnesses were required to give evidence in

   person, the prosecution would be required to incur the cost of flights and accommodation

   for the witnesses. In circumstances where the prosecution has already incurred

   significant expense in having the witnesses travel to Canberra during most of the first

   week of the trial, the giving of a direction would significantly reduce to the cost to the

   prosecution of calling evidence from these witnesses.

32.     If a direction were not made, there would be delay to the trial, which has already

exceeded the estimate that was provided to the jury. However, as this delay would be

caused, at least in part, by the prosecution’s failure to make this application at an earlier

time, I have not taken this matter into account in assessing where the interests of justice

lie.

33.     In conclusion, in assessing and weighing up each of the matters which I am required to

consider under section 32 of the EMP Act, I am satisfied that it is in the interests of the

administration of justice to make the direction that has been sought.

Orders

34.     For the above reasons, the following orders are made:

(1)	The following witnesses listed be granted leave to give evidence at the trial by
audiovisual link from a place outside the ACT but within Australia:

(a) [redacted]

(b) [redacted]

(c) [redacted]

(d) [redacted]

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: