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On 24 November 2023, the plaintiff entered a plea of guilty to one count of dealing with the proceeds of general crime contrary to s 400.2B(6) of the Criminal Code Act 1995 (Cth) ("the Criminal Code") in the District Court of New South Wales. The offence carries a maximum penalty of 15 years imprisonment.
The sentence proceedings commenced on 15 February 2024 before Jeffreys DCJ. During the proceedings the plaintiff unsuccessfully attempted to call evidence from her brother who was in Vietnam, by way of audio-visual link ("AVL").
In her affidavit affirmed on 5 August 2024, the plaintiff states that her brother would be able to give evidence of threats of physical violence made to him and their mother in Vietnam by the persons requiring her to commit the crime. Annexed to the plaintiff's affidavit is a letter to the District Court from the plaintiff's brother which details the threats of violence made to him, including to his mother and family, unless the plaintiff worked according to instructions from the persons referred to as "loan sharks".
The plaintiff's brother is a Vietnamese citizen and lives in Hanoi.
The applicant's attempt to call this evidence was unsuccessful as an application had not been made under s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth) ("MACMA") for a certificate that it would be in the interests of justice for the Attorney-General (Cth) to make a request to Vietnam that the brother's evidence be taken in Vietnam and broadcast to Australia.
The Crown objected to the brother's statement being treated as sworn/uncontested evidence, without the witness being made available for cross-examination. The Crown, however, did not object to the admission of the evidence contained within the statement if its contents were treated as unsworn evidence and given reduced weight.
The plaintiff wants her brother's evidence to be treated as sworn evidence. Accordingly, the Crown requires the brother to give oral evidence and be cross-examined. The plaintiff in her affidavit states that it is in the interests of justice that the Crown is able to cross-examine her brother.
It is for this reason that the plaintiff by way of a summons seeks an order that:
"The Supreme Court certify that it is in the interests of justice for the Commonwealth Attorney-General to make a request to Vietnam under part 2 of [MACMA], that evidence be taken in Vietnam and broadcast to Australia via video-link from the following witness [Phuc Hong NGO] for the purposes of the Sentencing Hearing in the NSW District Court of Thao Thi Phuong NGO."
In considering the plaintiff's application, I have been greatly assisted by the affidavit of Thomas Sharp, the acting secretary of the International Cooperation Unit within the Commonwealth Attorney General's Department ("the Department") and submissions made on behalf of the Commonwealth Attorney-General ("the Attorney-General"). Without detailing all of the submissions concerning the legislative scheme in s 39A of the MACMA, the likelihood of the Socialist Republic of Vietnam ("Vietnam") granting the request and the general observations as to how s 39A(3) may be applied, it is submitted on behalf of the Attorney-General that there does not appear to be any basis for an objection to the plaintiff's request nor information to suggest that Vietnam would not progress a request made on behalf of the plaintiff.
I have also been assisted by submissions made on behalf of the plaintiff and the Commonwealth Director of Public Prosecutions ("the Crown"). I note that the Crown does not oppose the issuing of the certificate.
Section 39A(3) of the MACMA obliges this Court in deciding whether to issue a certificate to have regard to the matters in subparagraphs (a) to (e).
I turn to those mandatory considerations:
[2]
(a) Whether Vietnam is likely to grant such a request made by the Attorney-General on behalf of the defendant
It appears from Mr Sharp's affidavit that the Department has not been involved in applications for the issue of a certificate under s 39A of the MACMA involving Vietnam. On 19 September 2024, the International Crime Cooperation Central Authority of the Department ("the Central Authority") requested an indication from the Vietnamese Central Authority of Vietnam's position in relation to providing mutual assistance in response to a request made on behalf of the plaintiff. In that correspondence, the Central Authority noted there was nothing in the Treaty on Mutual Legal Assistance in Criminal Matters between Australia and the Socialist Republic of Vietnam ("the Treaty") which prevents the assistance being requested by Australia or provided by Vietnam.
Although, it is presently unknown whether Vietnam is likely to grant a request, I take into account the advice that there does not appear to be any information to suggest that Vietnam would not progress such a request. Furthermore, whilst this is an important consideration, the present uncertainty does not mean that a request should not be made.
[3]
(b) The extent to which the material (whether it is evidence, a document, an article or a thing) that the defendant seeks to obtain from Vietnam would not otherwise be available
As the plaintiff submits, there is no other source in Australia from which the evidence may otherwise be available. The only mechanism by which the evidence can be given in the circumstances is by the brother's oral evidence including cross-examination by the Crown.
The plaintiff refers to the brother's employment and business interests, the expense and difficulty for him to travel to Australia and pay for accommodation. While the Crown submits it would be possible for the witness to physically travel to Australia to give evidence in court, the Crown accepts that it is undoubtedly more convenient and less disruptive for the witness to give evidence via AVL from Vietnam.
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(c) Whether the court hearing the proceedings would be likely to admit the material into evidence in the proceeding
The Crown accepts that the Court would hear the oral evidence of the brother subject to the witness being cross-examined. The Crown also accepts that the nature of the evidence, being evidence of a "non-exculpatory duress" would fall within the definition of the "nature and circumstances of the offence" and the sentencing court would be required to take into account the evidence under s 16A(2)(a) of the Crimes Act 1914 (Cth).
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(d) The likely probative value of the material, if it were admitted into evidence in the proceeding, with respect to any issue likely to be determined in the proceedings
The plaintiff contends that the value of the evidence is that it will detail a motive for the offence being fear rather than greed. The Crown accepts that the evidence (if accepted) would be highly probative in determining the plaintiff's level of culpability.
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(e) Whether the defendant would be unfairly prejudiced if the material was not available to the Court
The plaintiff submits that the brother's evidence of non-exculpatory duress (if accepted) is likely to reduce the plaintiff's term of imprisonment. The Crown accepts that the plaintiff would likely be unfairly prejudiced should the evidence not be available to the sentencing Court.
All of the matters in s 39A(3) (a)-(e) weigh in favour of the plaintiff's application being granted. The fundamental consideration is whether the issue of the certificate is in the interest of justice (s 39A(1)). I have little difficulty reaching that conclusion.
[7]
Orders
Accordingly, I make the following order:
1. The Supreme Court of NSW certifies that it would be in the interest of justice for the Attorney-General of the Commonwealth of Australia to request that the evidence of Phuc Nong Ngo should be taken in the Socialist Republic of Vietnam and broadcast to Australia via video-link for the purposes of the sentencing hearing in the District Court of NSW of Thao Thi Phuong Ngo.
Accordingly, I have signed the certificate pursuant to s 39A (1) of the MACMA handed up this morning by Senior Counsel for the Attorney General.
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Decision last updated: 02 December 2024