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Practice and procedure - Application for a direction that the evidence of a witness be taken at trial by videolink - Section 121 Evidence Act 1906 (WA) - Whether not in the interests of justice - Turns on own facts

Evidence Act 1906 (WA), s 121

ASIC v Rich [2004] NSWSC 467; (2004) 49 ACSR 578

R v Camperwell Green Youth Court [2005] UKHL 4; [2005] 1 WLR 393

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3

Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [2008] WASC 265

Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [2009] WASC 17

1 LE MIERE J: The defendant applies for a direction under s 121 of the Evidence Act 1906 (WA) (the Act) that the evidence of Gavin Samuel McDonald be taken at trial by videolink. The basis for the application is that Mr McDonald is 83 years old, currently resides in Queensland, has health problems and travelling to Perth would place a substantial physical and mental strain upon him. Mr McDonald has informed the defendant's solicitors that he wishes to give his evidence by videolink rather than travel to Perth to give his evidence in person. The trial of the action is listed to commence on 4 May 2010. The application is opposed by the plaintiff on the basis that it is not in the interests of justice that Mr McDonald's evidence be taken by videolink.

2 Section 121(1) of the Act provides that the Court may direct that evidence be taken by videolink from a person at a place outside the courtroom or other place where the Court is sitting. Such a direction must not be made unless the Court is satisfied the videolink is available or can reasonably be made available. It is common ground that a videolink is, or can be made, available.

3 Section 121(2a) provides:

The court shall not make such a direction if satisfied the direction is not in the interests of justice.

Section 121(2a) was introduced by the Acts Amendment (Justice) Act 2008 (WA). Before the amendment the section read:

The court shall not make a direction unless the court is satisfied that ... the direction is in the interests of justice.

The explanatory memorandum to the Acts Amendment (Justice) Bill 2007 stated that the amendment:

reverses the current wording so that an application should be granted unless it is not in the interests of justice to do so. This still leaves a discretion within the Court to refuse an application but means that applications should be granted unless there is good reason not to do so.

4 The plaintiff submits that there is good reason not to make the direction in this case on the following grounds:

1. Mr McDonald's evidence is centrally important.
2. Mr McDonald's credit will be at issue.
3. There are technological difficulties due to lapse of time between transmission and receipt of questions and answers.
4. There are difficulties posed by the use of audiovisual facilities where the examination is lengthy.
5. There is no evidence that Mr McDonald will suffer any health risk or complication other than anxiety related to travel if he gives his evidence in person.

5 In ASIC v Rich [2004] NSWSC 467; (2004) 49 ACSR 578 Austin J considered an application for orders for the taking of evidence by videolink from London. Section 5B(2) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) prevented the court from making such a direction in certain circumstances. Austin J stated at [12] that the court has a discretion to grant or dismiss the application when none of the excluding circumstances is present. Austin J found that the combination of factors in that case weighed in favour of viva voce evidence and against audiovisual evidence. His Honour said:

The evidence is centrally important to ASIC's case, the defendants will challenge the credit of the witnesses, the cross-examination will be relatively long and no doubt complex, and reliance will be placed on a large quantity of documents tendered by the plaintiff, and also upon documents not in the plaintiff's tender bundle. The logistics of managing the documents in an audiovisual cross-examination would be very difficult. Having audiovisual cross-examination each evening for two or more weeks while endeavouring to continue with the rest of the case each morning would, as I have said, be unduly taxing on the defendant's legal resources, and difficult for the court [44].

6 In relation to centrally important evidence, Austin J said:

The fact that the witness's evidence will be centrally important should not of itself persuade the court against using audiovisual facilities. But if the court can anticipate that the cross-examination of the witness will be lengthy and complex, and that the credit of the witness will be challenged, that combination of factors is likely to persuade the court against audiovisual evidence unless there is good reason for choosing it (such as, for example, a large difference in costs or illness of the overseas witness) [21].

7 In this case the plaintiff submits that Mr McDonald's evidence is centrally important. I have outlined the issues in this action in earlier interlocutory judgments - see [2008] WASC 265 and [2009] WASC 17. The action concerns alleged breaches by the defendant of an agreement made on 6 June 1988 between Hancock Mining Ltd (HML), Pennant Pty Ltd (PPL) and the defendant and an agreement made on 17 May 1989 between HML and the defendant. Those agreements in turn relate to an agreement made on 3 November 1986 between HML and MIMEX (a body established by the Socialist Republic of Romania). The plaintiff alleges that the breaches of agreement occurred on and after 16 August 1990. In particular, the plaintiff pleads that in breach of the 6 June 1988 agreement on 16 August 1990 the defendant refused, and at all material times thereafter continued to refuse, to supply any Mount Newman ore on behalf of HML to MIMEX in satisfaction of HML's obligations to supply iron ore to MIMEX pursuant to the 3 November 1986 agreement. The plaintiff alleges that at a meeting on 16 August 1990 the defendant communicated to the plaintiff its refusal to supply iron ore to MIMEX in breach of the 6 June 1988 agreement.

8 Mr McDonald has provided a witness statement to the defendant. In August 1990 Mr McDonald was the chief executive of the defendant. In his statement, Mr McDonald says that on 16 August 1990 he and Mr Wedlock on behalf of the defendant met with Mr Hancock and Mr Dalby of HML at HML's offices. Mr McDonald says that he did most of the talking for BHP and Hancock spoke most for HML. Mr McDonald says:

I have read the statement of claim in the action brought by Westraint against BHPIO and the allegation that at this meeting, BHPIO refused to supply any Mt Newman ore to Mimex. Neither Wedlock nor I said anything to this effect. After the meeting, and at all relevant times, BHPIO took steps to supply iron ore to Romania and continued to work with Dalby and others from HML to supply iron ore to Romania and an agreement to supply iron ore, conditional on the prior sale of steel, was made in 1991.

Mr McDonald says that he retired from BHPIO and left Perth in early September 1990. He remained employed by BHPIO in Brisbane until 1 July 1991 as an executive consultant to BHP-Utah Minerals International.

9 I accept that the evidence of Mr McDonald is important. The fact that Mr McDonald's evidence will be important is a factor to be taken into account but is not, of itself, a sufficient reason against using a videolink.

10 Mr McDonald's credit will be at issue. The plaintiff says that it at least wishes to challenge the accuracy of Mr McDonald's recollection of the 16 August 1990 meeting and the key events surrounding it. The plaintiff submits that in assessing the credibility of Mr McDonald his presence in court is important and this is particularly so because the court will not have the benefit of hearing from two of the four persons present at the 16 August 1990 meeting as they are deceased. The plaintiff submits that the court will better be able to observe Mr McDonald's demeanour if he gives his evidence in person.

11 The court is entitled to have regard to the demeanour of a witness in the appreciation of credibility. However, the evaluation of demeanour may be a less reliable gauge for the veracity of testimony than is the examination of the logic and coherence of an account and its consistency with other evidence and established facts. There is a growing understanding of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses: see, for example, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3, [88] Kirby J.

12 There was a time when the quality of audiovisual links was such that the ability of a judge to assess the reactions and responses of a witness to questions or material put before him was diminished by the judge perceiving the evidence by the audiovisual link rather than from a witness in the same room. However, the quality of audiovisual technology today is such that the ability of a judge to assess the demeanour of a witness is not significantly diminished by the evidence being taken by videolink.

13 There will be few cases where a judge will be significantly disadvantaged in his assessment of the witness' credibility by a witness giving evidence by videolink. There may be exceptional cases. In R v Camperwell Green Youth Court [2005] UKHL 4; [2005] 1 WLR 393 Baroness Hale at [46] referred to an example of an assault charge in which the defence was self-defence, where it might be important to see the witness in person and gain an impression of how threatening he could be, especially when angry.

14 This is not a case where the court will derive any significant advantage in assessing the demeanour of the witness by him giving evidence in the same room, rather than by videolink.

Technological difficulties due to lapse of time between transmission and receipt of questions and answers

15 In years gone by the delay between asking questions and receiving answers was noted by some judges as a factor potentially weighing against the use of a videolink. However, the experience of the use of videolinks in this Court is that the equipment currently in use is such that there is no significant delay between the transmission and receipt of questions and answers.

Management of documents in cross-examination

16 The practical problems of managing documents during cross-examination by videolink must be acknowledged. The problems will vary from case to case. In ASIC v Rich the problems included the number of documents to be put before the witness, the necessity for counsel to prepare his cross-examination sufficiently far in advance to ensure copies of the relevant documents were present in London by the time they were required and the need to keep such documents safe and confidential in London before and after their use. In this case counsel for the plaintiffs frankly stated that the documents required for cross-examination could be delivered to Brisbane in advance of the cross-examination. The presence at the cross-examination of solicitors representing each party would go a long way towards resolving practical difficulties at the examination. Nevertheless, I accept that the need for counsel to prepare his cross-examination sufficiently far in advance to ensure copies of the relevant documents are present in Brisbane adds a burden on the plaintiff. Furthermore, there is always the potential for something to go wrong.

17 It is not clear how many documents will have to be present in Brisbane if Mr McDonald is to give his evidence by videolink from Brisbane. It appears that it is likely to be somewhere between 42 and 262 documents. That is significant but does not give rise to a problem of the order that confronted Austin J in ASIC v Rich.

18 In many cases where courts have allowed evidence to be given by videolink the estimate for cross-examination has been a moderate length of, for instance, two to three hours. In some cases the taking of evidence by videolink has been considered unsuitable for taking lengthy evidence. In ASIC v Rich Austin J considered the length of cross-examination to be a less important factor than whether the witness is located in a different time zone from the court, creating problems in operating in two time zones. The time difference between Perth and Brisbane is two hours. That will not present any significant difficulty in scheduling the taking of the evidence.

19 Counsel for the plaintiff estimates that cross-examination of Mr McDonald will take at least one day. That is certainly a lengthy cross-examination and a factor against the taking of Mr McDonald's evidence by videolink.

20 It is Mr McDonald who has requested that he give his evidence by videolink rather than travel to Perth to give his evidence in person. Mr McDonald is 83 years old and currently resides in a suburb of Brisbane. Mr McDonald's general practitioner, Dr Fisher, has provided a report in which he says:

Mr McDonald has a long history of asthma and in the last few years has been investigated and treated for pneumonitis and investigated in regarding the presence of Mycobacterium Avium complex in his bronchial washings. The sudden onset of symptoms relating to this problem having rightly caused him considerable anxiety and insecurity in matters of health and he has as a consequence curtailed his travel to the extent that he has not flown or indeed travelled further than 100 km from Brisbane since 1997. It would cause significant anxiety if he was to be pressured into travelling to Perth as he tells me has been requested. Any alternative means of obtaining testimony would be desirable in the interests of his health.

21 The plaintiff has provided medical evidence, which I accept, that asthma and pneumonitis are not necessarily conditions that would prevent flying, unless they are very, very severe. Further, the plaintiff submits, and I accept, that the evidence does not establish that Mr McDonald's anxiety state prevents him flying to Perth. However, the evidence is that as a result of the symptoms relating to his condition and the anxiety and insecurity which they have caused him, Mr McDonald has not travelled further than 100 km from Brisbane since 1997. Mr McDonald's anxiety and insecurity about travel is such that he only sees his family when they visit him in Brisbane, notwithstanding that he has family members who live in different states in Australia.

22 I am not satisfied that a direction that the evidence of Mr McDonald be taken by a videolink from Brisbane is not in the interests of justice. The management of documents in cross-examination will place some additional burden on counsel for the plaintiff. Cross-examination of Mr McDonald is likely to be long and complex. Mr McDonald's credit is in issue and his responses to questions put to him and documents shown to him by the cross-examiner will be important. However, none of those matters will cause any significant disadvantage to the court in assessing the evidence of Mr McDonald. None of those matters will cause any unfairness to the plaintiff in deciding the case. I am not satisfied that the direction sought is not in the interests of justice.

23 The Court has a discretion whether or not to make the direction. I have referred to matters which favour Mr McDonald giving his evidence viva voce in the courtroom: the importance of his evidence, assessment of credit, the management of documents in cross-examination and the likely length of cross-examination. On the other hand, if the direction is refused then either the defendant will seek to compel Mr McDonald to travel to Perth or will forego his evidence. In the former case Mr McDonald would be subjected to great and unnecessary anxiety and distress. In the latter case the defendant would not be able to adduce important evidence. After balancing the factors for and against directing that Mr McDonald give his evidence by videolink from Brisbane I find that the factors in favour of giving the direction outweigh those against. Accordingly, I will direct that Mr McDonald's evidence be taken by videolink from Brisbane.