Environment Protection Authority v Hughes; Environment Protection Authority v ANT Civil Pty Ltd (No 3)

Cases Cited: Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250
Environment Protection Authority v Hughes; Environment Protection Authority v ANT Civil Pty Ltd [2025] NSWLEC 115
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529
R v Walker [2025] NSWCCA 62
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; [1999] HCA 3

Category: Procedural rulings

Parties: Environment Protection Authority (Prosecutor) (Respondent on the motion)
Andrew Lloyd Hughes (Defendant in proceedings 2023/297653, 2023/297654, 2023/297655, 2023/297656, 2023/297657) (Applicant on the motion)
ANT Civil Pty Ltd (Defendant in proceeding 2023/297689) (Applicant on the motion)

Representation: Counsel:
A McGrath (Prosecutor) (Respondent on the motion)
G Foster (Defendant) (Applicant on the motion)
Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor) (Respondent on the motion)
Zali Burrows Law (Defendant) (Applicant on the motion)

File Number(s): 2023/297653, 2023/297654, 2023/297655, 2023/297656, 2023/297657, 2023/297689

Publication restriction: Nil

JUDGMENT

Introduction

1. The NSW Environment Protection Authority (Prosecutor) has brought five charges against Andrew Lloyd Hughes (First Defendant) under the Protection of the Environment Operations Act 1997 (NSW) (PEO Act), and one charge under that Act against a company associated with the First Defendant, ANT Civil Pty Ltd (Second Defendant).

2. The charges brought against the First Defendant consist of two charges of land pollution contrary to s 142A(1) of the PEO Act, one charge of causing waste to be transported to a place that could not lawfully be used as a waste facility, contrary to s 143(1)(a) of the PEO Act, one charge of using a place as a waste facility without lawful authority contrary to s 144(1) of the PEO Act, and one charge of failing to comply with a clean-up notice contrary to s 91B of the PEO Act. One charge has been brought against the Second Defendant for causing waste to be transported to a place that could not lawfully be used as a waste facility, contrary to s 143(1) of the PEO Act. In relation to all charges it is alleged that the land in question (which is owned by the First Defendant) was polluted with asbestos waste as defined in the PEO Act.

3. The hearing of the charges was due to commence on 7 October 2025, and was listed for 20 days. However, on 7 October 2025 the Defendants filed a motion seeking to have all of the evidence obtained by the Prosecutor from the execution of two search warrants excluded on the basis that the search warrants were invalid. That motion was heard by me on 13 October 2025, and I delivered judgment dismissing the motion on 14 October 2025: Environment Protection Authority v Hughes; Environment Protection Authority v ANT Civil Pty Ltd [2025] NSWLEC 115 (Search Warrant Judgment).

4. Prior to the commencement of the hearing last October, I was advised that the First Defendant was not currently residing in Australia. A motion was filed on 22 September 2025 which sought for the First Defendant to follow the proceedings on an audio-visual link (AVL) rather than being present in court. Pausing here, it can be noted that while all the charges brought against the Defendants carry the potential for large fines to be imposed if the charges were proven, the First Defendant has not been charged with an offence under the PEO Act that can result in the imposition of a prison sentence. This motion did not have to be moved on, as the Prosecutor ultimately raised no objection to the First Defendant following the proceedings by AVL. At the time, I was informed by the Defendants’ legal representatives that there was no present intention for the First Defendant to give evidence in the proceedings, and I noted the indication from the Prosecutor that any application for the First Defendant to give sworn evidence would be opposed.

5. After the delivery of the Search Warrant Judgment on 14 October 2025, the Prosecutor opened its case, and its first witness was called on 15 October 2025. Between that date, and 3 November 2025, the Prosecutor read 30 affidavits and 1 expert report. Most of the deponents to these affidavits, and the expert, were cross-examined by the Defendants’ Counsel. In total, 45 exhibits have been tendered by the Prosecutor. Many of these exhibits comprise dozens of folders of documents, amounting to several thousand pages. USBs containing evidence such as surveillance footage and photos have been tendered. Thousands of text messages extracted from the First Defendant’s phone (obtained during the execution of the search warrants) have been tendered. Ten exhibits containing voluminous certificates and scientific analysis evidence given under ss 261 and 262 of the E**vidence A**ct 1995 (NSW) (Evidence Act) have also been tendered.

6. On 3 November 2025, the Prosecutor was able to close its case, save for potential amendments to the Statement of Agreed Facts, a matter that has now been resolved.

AVL Motion

7. On 3, 5, and 6 November 2025, the Defendants called three expert witnesses in their case, who were cross-examined. By 6 November 2025, the proceedings had reached the end date for their current listing, and required further dates for the hearing to be completed, principally for closing submissions. However, before this occurred, the Defendants filed a notice of motion on 3 November 2025 seeking the following order:

“An Order that Andrew Lloyd Hughes, the first defendant, be granted leave to give evidence via audio visual link pursuant to section 5B Evidence (Audio and Audio V**isual Links) Act 1998.”

8. Shortly before this motion was filed (but after it was foreshadowed) I made orders for the filing of evidence in relation to it, provision of written submissions, and listed it for hearing on 19 November 2025, which was then stood over to 10 December 2025. On the AVL motion, the Defendants were again represented by Mr Foster of Counsel, and the Prosecutor was again represented by Mr McGrath of Counsel. Only the evidence concerning the motion was completed on 10 December 2025. Oral submissions were made on 19 December 2025, the last day of term.

Evidence on AVL motion

9. The Defendants read the following affidavits:

(a) Affidavit of Zali Burrows dated 22 September 2025 (Ms Burrows**’** First Affidavit); (b) Affidavit of Zali Burrows dated 24 September 2025 (Ms Burrows**’** Second Affidavit); and (c) Affidavit of Andrew Lloyd Hughes dated 3 November 2025 (Mr Hughes**’** Affidavit).

10. In her First Affidavit, Ms Burrows, who is the solicitor for the Defendants, annexes a medical report concerning the First Defendant, prepared by Dr Olav Nielssen, psychiatrist, dated 16 September 2025. The Prosecutor objected to the admission of this report into evidence on the grounds that Dr Nielssen was not independent. As stated in his report, the First Defendant’s wife is Dr Nielssen’s niece. I admitted the report into evidence, but indicated that I would carefully consider what weight I would give it. In the report, Dr Nielssen records that the First Defendant told him of the following matters during his various consultations:

(a) the First Defendant is a former member of the Rebels Outlaw Motorcycle Club, but left that club while completing a four-year prison term for what is described in the report as “detaining a former associate over an unpaid debt”; (b) after the EPA issued its search warrants relevant to these proceedings, the First Defendant reported threatening calls from former clients (presumably of the Second Defendant) “complaining that they had been visited by the EPA”; (c) the First Defendant had been warned by a senior detective called Steve Hunt (DI Hunt) that his “life was in danger” related to the inadvertent disclosure of a transcript of an interview of the First Defendant by a government agency. As was subsequently revealed in other evidence (and is further discussed below) the interview concerned a murder investigation relating to a killing that took place in 2016. Ultimately, five men were convicted of murder, although the First Defendant did not give evidence at the criminal trial. The transcript of the interview was inadvertently disclosed to a solicitor for one of the men ultimately convicted of murder. The inadvertence related to the failure to redact the First Defendant’s name from the transcript of the interview; (d) the First Defendant became fearful of his safety and that of his family as a result of the incident with the transcript of his interview. He moved himself and his family overseas, the cost of which “had amounted to several hundred thousand dollars”; and (e) the First Defendant “continued to fear for his safety, based on his knowledge of the people who had made threats to his life”.

11. In the report, Dr Nielssen also opines that the First Defendant “meets the accepted criteria for the diagnosis of an anxiety disorder” and “for the diagnosis of a depressive illness”. Dr Nielssen also expresses the opinion – perhaps an opinion outside of his specialised knowledge as a psychiatrist – that “it is reasonable to conclude that Mr Hughes would face real danger if it were known that he had returned to Sydney”.

12. At this point it is convenient to state that although the First Defendant and his family are residing outside of Australia, their location has not been disclosed to the Court, other than being somewhere in Southeast Asia.

13. Many hearsay objections were taken to Ms Burrows’ Second Affidavit in relation to various matters she deposes to that she states she has been told by the First Defendant. I ruled that I would admit this evidence, principally because this application is interlocutory, and the source of the evidence was given: s 75 Evidence Act. However, I upheld an objection to a medical report dated 31 May 2024 of a Dr Katie Dimarco concerning the medical condition of Ms Tara Hughes, the First Defendant’s wife, on the basis that I did not consider her medical and treatment history to be relevant to the determination of this motion.

14. In her Second Affidavit, Ms Burrows deposes to the following matters:

(a) although the First Defendant is currently residing overseas with his family, the location he resides at has “clear internet and phone access”: Ms Burrows’ Second Affidavit at [3]; (b) on about 28 July 2023, the First Defendant was informed by DI Hunt concerning the inadvertent provision of the transcript of interview containing his name as referred to above. Ms Burrows said she also had a phone discussion with DI Hunt, during which DI Hunt “confirmed this fact, and discussed the danger Mr Hughes is in”: Ms Burrows’ Second Affidavit at [11]; (c) after the EPA commenced its investigation into the Defendants and issued clean-up notices, the First Defendant “received numerous calls from silent numbers and unknown persons seeking to meet up with him in secluded locations”, which caused the First Defendant to be concerned for his safety: Ms Burrows’ Second Affidavit at [13]; (d) on 14 October 2023, Mr Hughes received a text message from an associate of a group called the “abz crew” who I was told are a criminal gang. The email was accompanied by a photograph of a CD with the words “HUGHSY DOG [redacted]” with a further message: “Y**ou do have bigger issues like why abz crew reached out to me asking why you went to the [government entity] and I tried to act like we don’t speak anymore*,* I genuinely wanted to solve this but if you don’t need my “protection” then good luck cos sounds like you’ll have your hands full none of my business”: Ms Burrows’ Second Affidavit at [14]; (e) on 16 October 2023, the First Defendant, his wife, and children left for overseas: Ms Burrows’ Second Affidavit at [31]; (f) during a return visit to Australia, on 29 January 2024 Mr Hughes was “violently bash[ed]” in a carpark in Greystanes in NSW. Ms Burrows says that the First Defendant has told her that there is a “$400,000 contract out to murder him”. She states that “[t]he Hughes’ are fearful in returning to Australia on the basis of being identified, located and murdered”: Ms Burrows’ Second Affidavit at [34]; (g) the Hughes family are not in a position to fund a return to Australia to give evidence, which they estimate would cost $550,000 based on the following:

“$15,000 - return flights for 7 people…

$33,000 for… accommodation…

$3200 nanny wage

$500 Visa for nanny

$500,000 for 12 man security on rotation”: see Exhibit C to Ms Burrows’ Second Affidavit.

15. Because of the hearsay nature of much of Ms Burrows’ Second Affidavit, I granted leave to Mr McGrath to cross-examine her. During the course of her cross-examination, Ms Burrows conceded that:

(a) DI Hunt had never told her that the First Defendant’s life was in danger: T729.45-48; (b) at least some of her legal fees have been paid: T735.14-T736.37; and (c) the First Defendant and his wife own a property bought in January 2021 for $2 million that is currently listed for sale, and is presently rented: T739.26-50. There is a mortgage over the property securing a debt of over $1.4 million.

16. In his affidavit, the First Defendant deposed to the following matters:

(a) he now wishes to give evidence to respond to matters that have arisen in the Prosecution case, and because a potential witness called “Paul… does not wish to give evidence”: Mr Hughes’ Affidavit at [3] and [6]. No further details concerning what the First Defendant wishes to give evidence about are provided; (b) he is concerned about his safety, and cannot afford to travel to Sydney from overseas in order to give evidence: Mr Hughes’ Affidavit at [8] and [13]; and (c) he has a laptop computer and phone and reliable internet connection: Mr Hughes’ Affidavit at [9] and [12].

17. Mr McGrath sought leave to cross-examine the First Defendant on the contents of his affidavit. That cross-examination would have had to have occurred by AVL, which is the very application the First Defendant is making. Given the limited nature of the matters raised by the First Defendant in his affidavit, which did not go beyond matters already covered in Ms Burrows evidence, I refused leave to cross-examine the First Defendant.

Prosecutor’s evidence

18. The Prosecutor read without objection an Affidavit of Christian Gaulke dated 14 November 2025. Mr Gaulke is a solicitor employed by the Prosecutor, and his affidavit mainly addressed the large volume of material admitted into evidence in the proceedings to date. The Prosecutor also read an Affidavit of Ashika Kumar dated 8 December 2025. Ms Kumar has had day-to-day responsibility as a solicitor for the Prosecution employed by it since 14 May 2024. Most relevantly in relation to her affidavit, Ms Kumar deposed to having the carriage of other prosecution proceedings against the First Defendant currently before the Liverpool Local Court concerning alleged land pollution by asbestos waste. The First Defendant pleaded guilty to these offences on 5 May 2025. In relation to sentencing, the First Defendant has made an application to the presiding magistrate to give evidence by AVL in relation to disputed facts. The learned magistrate has adjourned that application to 16 March 2026 to “enable the Land and Environment Court to hear and determine the AVL application” currently before me: Ms Kumar's Affidavit at [24].

19. The Prosecutor also called DI Hunt to give oral evidence, and provided to the Defendants’ solicitors a note of the evidence it was expected he would give. I also granted leave to Mr Foster to cross-examine DI Hunt. His relevant evidence can be summarised as follows:

(a) he confirmed he had a phone conversation with the First Defendant concerning the inadvertent release of the unredacted transcript of the interview with the First Defendant concerning a murder investigation referred to above. Six other people also had transcripts of interviews inadvertently released with their names not redacted to solicitors for a defendant on a murder charge: see T 754-755; (b) he has never informed Ms Burrows that there is a “contract out” for the First Defendant, nor did he tell her or the First Defendant that he thought the Defendant’s safety was in danger: T 756.10-27; (c) he does not have a recollection of the First Defendant asking for police protection. Had this occurred, DI Hunt would have made a formal application for it, although he doubted the First Defendant would qualify for protection: T756.36-757.17; (d) the First Defendant did not give evidence in the murder trial related to his transcript of interview. 16 protected witnesses did, and DI Hunt is unaware of any reported threats against those witnesses: T757.20-40; (e) no report has been made to police about the alleged assault on the First Defendant in January 2024: T758.35-48; (f) he is unaware of any “hit” out on the First Defendant: T761.45-47; (g) he doubts whether he had ever said to the First Defendant, as he is alleged to have, that he hated “seeing young people ending up in a pool of blood”: T763.1-15. (h) he had a telephone conversation with Ms Burrows in which he confirmed that he did not know of any threats to the First Defendant: T765.35-45; (i) he agreed that the “Abuzar Sultani” or “ABZ crew”, members of which were convicted of the 2016 murder referred to above, are “very dangerous”: T768.6; (j) he agreed that the impression he gained from the First Defendant in telling him of the inadvertent release of the unredacted transcript was that the First Defendant was “worried”: T769.16-18; (k) it was “plausible” that the First Defendant considered he was in real and immediate danger, although he was unaware this was in fact the case or that there was a “contract put on him”: T772.27-45; (l) the ABZ crew tend to “do their own killing” rather than outsourcing it: T773.1-13; and (m) the inadvertently released transcripts of the seven persons by the unnamed government agency, including the transcript of the First Defendant, ultimately “didn’t take the investigations anywhere” and none of those persons gave evidence at the relevant murder trial: T777.

Statutory provisions and principles

20. The order sought by the First Defendant to be granted leave to give evidence by AVL is based on s 5B of the *Evidence (*Audio and Audio V**isual L**inks) Act 1998 (NSW) (AVL Act). The First Defendant mainly addressed s 5B(2)(b). The Prosecutor opposes the motion on the basis of each of ss 5B(2)(a), (b) and (c). Section 5B of the AVL Act is in the following terms:

5B Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally

(1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.

(2) The court must not make such a direction if—

(a) the necessary facilities are unavailable or cannot reasonably be made available, or

(b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or

(c) the court is satisfied that the direction would be unfair to any party to the proceeding, or

(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.

…

(3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction 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.

21. Section 5B of the AVL Act (and in particular s 5B(2)(c)) was considered by the Court of Appeal in Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250 (Antov). In this case, Bell P (as the Chief Justice then was) stated in his judgment (Bathurst CJ and Pain JA agreeing) that while assessment of unfairness to a party under s 5B(2)(c) involves a broad valuative judgment, if that state of satisfaction is realised, the decision of the Court is not a discretionary one. If the Court on the evidence becomes satisfied that it would be unfair to any party to the proceedings for evidence of a witness to be given by AVL, then the Court is “precluded from exercising any discretion by reason of s 5B(2)(c)” of the AVL Act: Antov at [46].

22. It follows that if the Court also were to reach the conclusion that “the necessary facilities are unavailable or cannot reasonably be made available” for the giving of evidence by AVL facilities, the court “must not make” an order granting leave for evidence to be given by AVL (see s 5B(2)(a)). Equally, if the Court is “satisfied that the evidence … can more conveniently be given… in the courtroom… at which the court is sitting”, again the Court must not make an order directing that evidence can be given by AVL: s 5B(2)(b).

Parties’ submissions

23. As stated, the Defendants principally addressed s 5B(2)(b) of the AVL Act. It was submitted on their behalf that the Court would not be satisfied that the evidence the First Defendant wishes to give could more conveniently be given in the courtroom in Sydney rather than by AVL from an overseas location. This is because:

(a) the First Defendant has well founded fears for his safety and the safety of his family were he to return to Australia; and (b) it would be prohibitively expensive for the First Defendant to return to Sydney to give evidence, and he cannot afford to do so as he does not have the funds, and has no source of income.

24. It was also submitted that the Court would be satisfied that, as he has a laptop, a phone and reliable internet, there would be no difficulty in the First Defendant giving evidence by AVL. It was submitted that he has access to printing facilities. In oral and written submissions, it was submitted that he could attend an Australian embassy or consulate for the purposes of giving evidence (Defendants’ Written Submissions (DWS) at [15]), although no evidence was provided in relation to this submission. It was also submitted that it would not be unfair to the Prosecutor for the First Defendant to give evidence by AVL given that the First Defendant has access to the necessary facilities. Reference was made to a few other witnesses in the hearing who had given evidence by AVL without difficulty, albeit from locations within Australia (as well as evidence of a relatively brief nature).

25. The Prosecutor submitted that it would be unfair to it for the First Defendant to give evidence by AVL, meaning that the Court must refuse the application. The principal matters of unfairness raised were that there would inevitably be detailed credit challenges to any evidence given by the First Defendant, and the assessment of credit would be more difficult for the Court to evaluate if evidence was given by AVL. Coupled with this, the cross-examination would be detailed, and would involve a large volume of documentary material, including video surveillance material. This would result in a disjointed cross-examination in relation to which flow would continuously be interrupted.

26. It was also submitted by the Prosecutor that the Court would not be satisfied that the necessary facilities would be available for the First Defendant to give evidence by AVL in a relatively uninterrupted and coherent manner, and further the Court would be satisfied that it was more convenient for the First Defendant’s evidence to be given in the courtroom in Sydney rather than by AVL. It was submitted that there was evidence upon which the Court could conclude that the First Defendant did have the funds and could afford to come back to Sydney to give evidence. He is the owner of a substantial property that is currently for sale. He has engaged private lawyers. It would be unnecessary for his wife and children to fly back to Sydney for the purposes of the First Defendant giving evidence, and the evidence falls well short of establishing that the First Defendant’s life would be in danger were he to return to Sydney.

Resolution

27. The First Defendant did not outline with any specificity what the nature of the evidence he wishes to give would be about. Presumably though it would be relevant to the elements of the charges that the Prosecutor has to prove beyond reasonable doubt. For example, in relation to the charges under s 142A(1) of the PEO Act, his evidence might go to the issue as to whether he caused or permitted his land to be polluted. It might also be that the First Defendant wishes to give evidence that his land was already polluted with asbestos or asbestos waste prior to him purchasing the property.

28. In relation to the charges under s 143(1)(a) of the PEO Act, it may be that the First Defendant wishes to give evidence that at no stage he transported or caused to be transported asbestos waste to his property. In relation to the charge under s 144(1) of the PEO Act, it may be that the First Defendant wishes to give evidence that he was not using the premises as a waste facility without lawful authority.

29. Whatever the exact nature of the evidence the First Defendant wishes to give might be, it is clear (as was accepted by Mr Foster: T800.15-18) that there would be a challenge by the Prosecutor to the First Defendant’s credit, and perhaps also his reliability. Any credit challenges by the Prosecutor to the First Defendant’s evidence would likely involve the use by the Prosecutor of a significant amount of documentary evidence, including video surveillance evidence, and text messages from the First Defendant’s mobile phone obtained via the execution of a search warrant.

30. In Antov, Bell P (as the Chief Justice then was) made the following observations about the potential unfairness to a cross-examiner in relation to a witness appearing by AVL:

“Constraining a party to cross-examining a witness by video link will not always, but may sometimes, involve a degree of unfairness to that party, depending on all the circumstances of the case. This is why an assessment of unfairness necessarily involves a judgment of an evaluative character. Relevant circumstances may include the importance of the witness, whether his or her credit was in issue, the nature and extent of documents involved, whether translation of documents or oral evidence is necessary, time differences in the other forum and the quality of technology. In certain cases, depriving the cross-examiner 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 and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party” may also work relevant unfairness: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152; [2009] FCA 1306 at [78].

Furthermore, the fairness or otherwise to one party of permitting a witness called by the opposing party to give evidence by video link may be affected by the timing of the application relative to the trial, the availability of other options to the party making the application and the circumstances of the witness involved. It is plain that the primary judge took these matters into account in reaching her conclusion that it would be unfair to Lidija to permit Mr Dabeski’s evidence to be given by video link”: Antov at [50]-[51].

31. I accept that were the First Defendant permitted to give evidence by AVL his credit would be squarely an issue. He is likely to face many challenges to his credit, and in the course of this is likely to be challenged with a large amount of documentary evidence, including his own text messages, as well as the surveillance video already referred to. I also accept that this might not allow me to observe the First Defendant’s demeanour in as clear or comprehensive way as I could were the First Defendant present in the courtroom.

32. Demeanour is a broad concept, and involves many aspects of the manner in which a witness gives evidence, such as body language, tone, inflection of voice, emotion, facial expression, and eye contact. Not all of what might be relevant to demeanour or credit are likely to be as easily observed by use of AVL as with a witness present in the witness box. Some aspects of demeanour however, like hesitation, might be discernible by AVL. Others might not.

33. I pause here to note that there are limitations concerning the use of demeanour, and it is certainly not some immutable tool for determining credit. In a number of cases judges have made statements in which they have cautioned against the use of demeanour as some infallible guide for making findings of credit: see for example State Rail Authority (NSW) v Earthline C**onstructions Pty Ltd (In Liq*)* (1999) 73 ALJR 306; [1999] HCA 3 at pp 328-329 per Kirby J; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ. Further, I of course accept that credit and reliability involve more than just an assessment of demeanour.

34. Nevertheless, changes in demeanour can be significant, and might go unnoticed in evidence given by AVL.

35. Picking up on the Chief Justice’s reference in Antov (see [30] above) to “the gravity and immediacy of the moment, and of the supervising presence of the judge” (quoting from Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152), Mr McGrath in oral address made the following submission in relation to potential unfairness to the Prosecutor were leave granted to the First Defendant to give evidence by AVL:

“MCGRATH: But in addition some of perhaps those practical aspects of engaging with a witness with the documents, the flow of question or the like, there is also the personal presence between both the questioner and the witness, in terms of that's an element of an effective cross-examination, that they were in each others personal presence. And there's an aspect that goes beyond just the flow of questioning and the flow of documents, it's in fact that interpersonal relationship between the examiner and the witness… it is an element of the effectiveness of cross-examination, the interpersonal, the presence of the two individuals in proximity to one another. The cross-examination, particularly on questions of credit when someone is separated… when that relationship is separated or augmented by a screen, it is diminished“: T805.47-806.20.

36. I accept in general the thrust of this submission in relation to potential unfairness to the Prosecutor.

37. Recently, in R v Walker [2025] NSWCCA 62 (Walker), the Court of Criminal Appeal considered s 294B(3) and (7) of the Criminal Procedure Act 1986 (NSW) (a provision relating to complainants in prescribed sexual offence cases giving evidence by closed-circuit television or other AVL means), as well as s 5B of the AVL Act. In Walker, Justice Dhanji (with whom Harrison CJ at Common Law agreed) said this at [32]-[35]:

“There is, however, something of a trend towards re-evaluating a confidence in the functional equivalence between in person and AVL evidence. In R v Early (No 4) [2023] NSWSC 505, Yehia J made reference to a number of authorities and observed (at [34]) that the increased use of AVL evidence that came about as a result of the COVID-19 pandemic was “a dramatic response to an unprecedented situation” but that it remained the case that it was not the equal of in person testimony. Her Honour cautioned that considerations such as cost efficiency and the desire to reduce inconvenience would not necessarily outweigh the potential for the giving of evidence by AVL to operate unfairly to the opposing party.

Interestingly, reflecting what may be a growing scepticism, Lee J, subsequent to his remarks in Australian Securities and Investments Commission v GetSwift, with the benefit of further experience and “subsequent reflection”, reviewed his position in Palmer v McGowan (No 2) [2022] FCA 32; (2022) 398 ALR 524, stating (at [46]-[47]):

“46 Related to this point, is that increasingly I have felt a nagging disquiet that I may perhaps be missing something in assessing the evidence of a witness by reference to the tone of voice or non-verbal signals. As time has gone on, it is [sic] has become more evident to me that in an audio-visual feed, minor differences in emphasis or tone can be more difficult to appreciate and assess.

47 It has, of course, become common for scepticism to be expressed about the advantage that trial judges enjoy in seeing a witness give evidence. But despite these well-founded criticisms and the fact that by video a judge can observe the manner of giving evidence remotely, based on my experience in recent times, I consider I have a better prospect of understanding the subtleties and nuances of the sort of evidence to be given in the present case, if it is given in person…”

Concerns as to the use of AVL go beyond the capacity of the tribunal of fact to assess demeanour, extending to the loss of the immediacy and austerity of the process of adducing evidence in the courtroom. Thus, in Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250, Bell P (with whom Bathurst CJ and Payne JA agreed) said (at [50]):

“In certain cases, depriving the cross-examiner 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 and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party’ may also work relevant unfairness: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152; [2009] FCA 1306 at [78].”

In a similar vein are the observations of Snaden J in Rooney v AGL Energy Limited (No 2) [2020] FCA 942 (at [18]):

“I acknowledge that some judges of this court have expressed the view that such assessments can be made as well by remote means as by traditional in-court examination: see, for example, ASIC v Wilson [2020] FCA 873, [35] (Lee J); Tetley v Goldmate Group Pty Ltd [2020] FCA 913, [16] (Bromwich J); and Capic v Ford Motor Company of Australia Limited [2020] FCA 486, [19] (Perram J). Those conclusions are, of course, personal to those who have drawn them. My own experience of present-day remote hearing technology is slightly less positive (although, I stress, not negative). I consider it a good and, in many instances, necessary “Plan B”. However, the available technology cannot fully replicate the court room environment that is so often central to an adversarial system of civil justice. In my experience, the technology inhibits (if not prohibits) the cadence and chemistry – both as between bar and bench, and bar and witness box – that personify well-run causes. Those are traditional forensic benefits of which litigants ought not too lightly be deprived: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152, 171 [78] (Buchanan J). Further, the technology often begets delay, particularly when documents are to be supplied remotely. Although broadly reliable, it is not uncommon for connections to be momentarily of poor quality, occasionally to the point that they are unusable. All of these factors influence the user experience of a justice system from which all litigants are entitled to benefit.”

38. Justice Dhanji also referred to recent research in the area, and said this at [38]-[49] (citations omitted):

“While the following discussion does not purport to represent a complete survey of the available research in this area, it is sufficient to highlight the relevant issues. While the research is not all one way, the dominant view is that evidence given by AVL, even with advances in technology, does not overcome the advantages of in person testimony. It has, in this regard, been observed that AVL only provides an “approximation of face-to-face interaction”.

…

Even where there is no issue with the quality of the AVL facility, however, research suggests that evidence given by AVL is nonetheless not the equal of in-person testimony. There is, for example, evidence that witnesses may behave differently when giving evidence via AVL than they would in the courtroom.

The matters referred to above do not of themselves suggest that, even where the quality of the AVL facility is good, the disadvantage is to the opposing, rather than the calling party. Indeed, some scholars have argued that the use of AVL may cause evidence to be less believable for reasons other than an apparent deficiency in quality, by obscuring or distorting non-verbal cues, leading to a weaker standard of communication (I infer with the tribunal of fact).

…

Other scholars have similarly suggested that users appearing via AVL may have greater difficulty engaging in the proceedings and may feel alienated, stressed or fatigued.

On the other side of the ledger, it has been suggested that the factfinder may not have much, if any, sense of a witness’ posture or bodily movements, other than them shifting in their seats, depriving them of an important visual cue used to assess credibility, presumably reducing the scrutiny able to be given to the evidence.

…

The Australian Institute of Criminology, in a research report on AVL technologies in Australian criminal courts, canvassed the potential impact of the use of AVL on both the cross-examiner and the witness in a criminal trial, and made the following observations:

“Although AVL allows for witnesses to be cross-examined and to participate actively in the proceedings, it has been argued that the visceral responses that are often experienced in face-to-face encounters can be lost when witnesses appear via video link rather than in person. The fact that the parties on the computer screen are only two-dimensional means that it is possible for some non-verbal cues to be present, yet remain unnoticed. In addition, video technology may actually encourage (consciously or otherwise) a witness to behave in a disinhibited manner, which may manifest itself through fidgeting or averting one’s gaze from the screen. Maintaining eye contact throughout the proceeding, while desirable and often requested, can be difficult. Western cultures view eye contact as a sign of respect, friendliness and attentiveness to the speaker. Those who do not make eye contact are perceived to be less credible, hostile, submissive and less adept intellectually.” (citations omitted)

The challenge in the particular context of a jury trial to which s 294B(7) applies is how to deal with both the legislative prohibition and the reality that the impact of the use of AVL may be beneficial or detrimental to either party, and that impact will, in the ordinary case, not be ascertainable”

39. Before Walker, in R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529 (a case concerning an application for a witness to give evidence pursuant to s 5B of the AVL Act), Hamill J discussed the possible tension between the Court of Appeal’s judgment in Antov*,* and two decisions of the Court of Criminal Appeal relating to the issue of adequate assessment of demeanour by AVL. Hamill J, relying on Antov, concluded as follows at [34]:

“As I did in R v Al Batat (No 1), I prefer to follow the more recent decision of the Court of Appeal. That is, I am satisfied that where an important witness is to be subject to a credibility attack, it is preferable that the witness gives evidence in the courtroom. This approach accords with observations made in other cases decided at first instance: ASIC v Rich [2004] NSWSC 467; (2004) 49 ACSR 578 at [22] (Austin J) and Hughes v Whittens Group P/L [2017] NSWSC 329 at [21]”.

40. In this case, as stated above, undoubtedly the credit (and perhaps reliability too) of the First Defendant will be an issue were he to give evidence. There are likely to be many, many credit challenges to his evidence. His cross-examination is likely to take a number of days, and involve the First Defendant being challenged, as stated previously, with the use of many documents, including his own phone records and surveillance film. While I am conscious of all the observations made by Courts that the assessment of demeanour is not an infallible guide for the assessment of credit, it is still relevant, and demeanour is better appreciated, and credit is more easily assessed, when the witness is giving evidence in court rather than via AVL.

41. In these proceedings, where credit will be an issue, and where there are likely to be many credit challenges over a long period of time by the Prosecutor, who will need to use many documents as part of those challenges, and where the assessment of demeanour is at least likely to be of some importance, I am satisfied that to direct that the First Defendant be permitted to give evidence by AVL would be unfair (and considerably so) to the Prosecutor. Consistent with what was said by the now Chief Justice in Antov, because I am satisfied of unfairness pursuant to s 5B(2)(c) of the AVL Act, there is no aspect of discretion now to be exercised. I “must not” grant the orders sought by the First Defendant.

42. While strictly not necessary to consider, because submissions were made in relation to ss 5B(2)(a) and (b) of the AVL Act as well as in relation to s 5B(2)(c), I will also state that I am also of the view that “the necessary facilities are unavailable or cannot reasonably be made available” for the giving of AVL evidence. I accept that the First Defendant has a laptop, a phone, access to printing facilities, and an internet connection. However, no other evidence was presented to suggest that he could give evidence over a number of days in a way that would ensure reasonable continuity, or how there would be adequate practical means for the First Defendant to consider a vast amount of documentary and film evidence whilst giving his evidence by AVL. No attempt was made by the First Defendant, for example, to avail himself of facilities that a Court might have, or perhaps a large law firm, or some other organization with greater AVL hardware or technology than a laptop and a phone. The submission made that he might be able to go to an embassy to give his evidence is unsupported by any evidence as to: what embassy; how this would practically occur; or whether it would even be permissible. I therefore would also refuse this application under s 5B(2)(a), as I am persuaded that the “necessary facilities are unavailable or cannot reasonably be made available” for the First Defendant to give evidence in an adequate and continuous way by AVL.

43. I am also against the Defendant in relation to s 5B(2)(b), as I am “satisfied that the evidence… can more conveniently be given… in the courtroom… at which the court is sitting”. My reasons for this are as follows.

44. First, the advantages for credit assessment as well as the management of documents used for cross-examination are obvious.

45. Secondly, there would be no risk of an AVL link failing.

46. Also in relation to s 5B(2)(b), I accept that relevant to that state of satisfaction about convenience is the issue of the personal safety of the First Defendant. For the purposes of considering this provision I accept that the First Defendant has reported the matters recorded by Dr Nielssen in his report dated 16 September 2025. I also accept that the First Defendant has told his instructing solicitor Ms Burrows about his concerns and fears for his safety.

47. I have also had regard to text messages between Ms Burrows and the First Defendant (Exhibit D1), and between Ms Burrows and DI Hunt (Exhibit D3). It is clear that as outlined above, in the investigation of a murder that took place in 2016, a transcript of an interview of the First Defendant by a government agency was inadvertently provided to an accused’s solicitor in an unredacted form, thus not concealing the First Defendant’s name. I accept that the text messages in Exhibits D1 and D3 are evidence of the First Defendant’s fears for his personal safety.

48. I have also had regard to the evidence of DI Hunt, including all the matters outlined above at [19].

49. While I accept that the First Defendant has an apprehension about his safety that he has told Ms Burrows about, and that he has given an interview (described as “benign” (T757.20-23)) concerning what I am told are members of a dangerous criminal gang, the evidence falls short of establishing the First Defendant’s life would be in danger were he to return to Australia to give evidence in these proceedings. I accept DI Hunt’s evidence that the First Defendant did not tell him that his life was in danger. Further, DI Hunt did not tell Ms Burrows that he thought or thinks the First Defendant’s life has been or would be in danger: T729. I accept DI Hunt’s evidence that the interview given by the First Defendant to the agency that inadvertently disclosed it in an unredacted form was an interview that was ultimately irrelevant to the murder investigation, or the trial that subsequently occurred. I also accept that the First Defendant did not ask for police protection.

50. There is an insufficiency of evidence then for me to make a finding that the First Defendant’s life or wellbeing would be in danger were he to return to give evidence in this matter in a court in Sydney.

51. As to the First Defendant’s claim that he cannot afford to return to Sydney to give evidence in Court here, I do not accept this assertion. The First Defendant has not adduced any evidence of his assets and liabilities. The Court has no evidence of the financial position of the Second Defendant. Ms Burrows conceded that a property owned by the First Defendant and his wife at Windsor Downs is for sale, that it is a six-bedroom home on nearly 17 hectares of land. It was purchased by the First Defendant and his wife in 2021 for $2 million. There is a mortgage, involving a debt to a lender of over $1.4 million. That leaves several hundred thousand dollars in equity. Further, were the First Defendant to come back to Australia to give evidence, I do not accept the cost would be anything like the $551,000 estimated. His wife, children, and their nanny would not need to come with him for the purposes of him giving evidence. I do not accept he would need a 12-man security detail at a cost of half a million dollars. In circumstances where the First Defendant has taken himself and his family to another country, I am not certain that the costs of him coming back to Australia to give evidence are relevant in any event to my consideration about convenience under s 5B(2)(b) of the AVL Act. Assuming it is, however, I am not persuaded that the First Defendant would be unable to afford to return to Australia for a limited time in order to give evidence in these proceedings.

52. For completeness, one final matter relates to s 5D of the AVL Act, which provides as follows:

5D Administration of oaths and affirmations

(1) Subject to subsection (2), an oath to be sworn or affirmation to be made by a person giving evidence by audio link or audio visual link under Part 1A or 1B may be administered either—

(a) by means of the audio link or audio visual link, as nearly as practicable in the same way as if the person were to give evidence in the courtroom or other place where the NSW court is sitting, or

(b) at the direction of, or on behalf of, the court at the place where the person is giving the evidence by a person authorised by the court.

(2) A person giving evidence by audio link or audio visual link under Part 1A or 1B from a foreign country is not required to give the evidence on oath or affirmation if—

(a) the law in force in that country—

(i) does not permit the person to give evidence on oath or affirmation for the purposes of the proceeding, or

(ii) would make it inconvenient for the person to give evidence on oath or affirmation for the purposes of the proceeding, and

(b) the NSW court is satisfied that it is appropriate for the evidence to be given otherwise than on oath or affirmation.

(3) If evidence is given otherwise than on oath or affirmation, the NSW court is to give the evidence such weight as it thinks fit in the circumstances.

(4) Subsections (2) and (3) apply despite anything to the contrary in the Evidence Act 1995 or any other law of this State.

53. As stated above, the First Defendant has not informed the Court as to the foreign country he is residing in. In these circumstances, even if I had formed a different view to the one I have reached concerning each of ss 5B(2)(a), (b), and (c), it is unclear how the Court could navigate s 5D without knowing which country the First Defendant proposes to give evidence from.

Conclusion

54. For the reasons given above, because I am satisfied of unfairness to the Prosecutor, the First Defendant’s motion to give evidence must be dismissed pursuant to s 5B(2)(c) of the AVL Act. As stated above, I would also have dismissed the motion under both ss 5B(2)(a) and (b).

Orders

1. The Defendants' notice of motion filed on 3 November 2025 is dismissed.
2. Costs are reserved.
3. The further hearing of the charges against the Defendants is confirmed to recommence at 10am on Monday 9 February 2026, and is to conclude by Friday, 27 February 2026, by which time the Court expects the parties to have given final oral addresses, and provided the Court with any final written submissions.

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