Many persons who give evidence in criminal proceedings would prefer not to do so. It is not uncommon for witnesses to have a general apprehension that those on trial might in some way cause harm to them. In some cases, the reason for apprehension of this kind goes further. Threats may be made, general or specific, that harm will be done to a person if he gives evidence. In some cases, threats may be made to other persons and that fact may provide a basis for apprehension by the particular witness. But such circumstances do not, in general, constitute duress in the sense of relieving the witness of the obligation to give evidence when properly called upon so to do.
35 In assessing whether the prosecutor had established Ms Gamboa's unavailability, it ought not to be overlooked that there was no explanation given to his Honour, as to why a decision was made by the prosecutor not to seek the issue of a bench warrant. That decision must plainly have been made during the course of the hearing on 22 November when the application for a four-week adjournment was made, so that consideration could be given by the prosecutor as to whether a bench warrant should be sought. The application, however, was abandoned. This may explain why, in his reasons for decision, his Honour did not apparently consider, in the circumstances of the case before him, the available step of seeking a bench warrant, which the prosecutor ought reasonably to have taken. His Honour merely observed that Ms Gamboa appeared to have been fully co-operative, until the alleged making of a threat, on the evening before the hearing and that there was no reason why bringing Ms Gamboa before the Court would alter her refusal to co-operate.
36 The position before his Honour was that the prosecutor did not explain the failure to take the step of seeking a bench warrant, or other obvious and reasonable steps to which we have earlier alluded, and which were referred to in the authorities that his Honour dealt with, in order to secure Ms Gamboa's attendance at Court.
37 This approach can be contrasted with that taken in the proceedings before Hamilton J in Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976. There his Honour explained why, in the particular circumstances of the civil proceedings before him, it would not have been reasonable for the defendants to make application to the Hong Kong Court, to secure the attendance of an unco-operative witness. His Honour dealt with questions such as the trouble and cost of such an application and the evidence as to the witness' aversion to giving evidence and the poor quality of his recollection (at [22] to [26]).
38 Given the requirements of s 65 of the Evidence Act, the onus fell on the prosecutor to establish that 'all reasonable steps' had been taken to compel Ms Gamboa to give evidence, or to secure her attendance. On the evidence, that onus was plainly not met.
39 It follows that the appellant's case must be accepted as having been established. His Honour fell into error in concluding that the requirements of s 65 had been satisfied in relation to Ms Gamboa. On the evidence the appeal must be upheld.
Orders
40 The appellant sought orders for the costs of the appeal and the proceedings below, as well as an order for repayment of the fine which the Chief Industrial Magistrate had imposed.
41 The respondent sought and was given an opportunity to file short written submissions as to the costs of the proceedings below, to which the appellant was given an opportunity to reply. We reserved on the question of those costs. The other orders sought by the appellant were made by consent.
42 For the reasons given, leave to appeal must be granted, the appeal upheld and the conviction of the appellant quashed. We order accordingly. The respondent is also ordered to: