R v Early

Submissions

1. The Crown submitted that the court would be satisfied that there are facilities, being a remote witness room at Bundaberg Courthouse, which will be available during the course of the trial. Barry Sutton's medical conditions, and his fear of flying, militate against requiring him to attend in person to give evidence. In that regard, the Crown relies upon the evidence of Dr Kerswill.
2. The Crown submitted that it is in the interests of the administration of justice for the court to make a direction that Barry Sutton give evidence by way of audio-visual link. His evidence is important and relevant. The facility proposed has previously been used for witnesses giving evidence in interstate proceedings which is within a court complex. Mr Sutton is not well travelled. He has only flown once and is anxious about travelling to Sydney.
3. On behalf of the accused, Mr Clark submitted that the medical evidence, when carefully considered, does not support the contention that Barry Sutton is not fit to travel to Sydney.
4. The evidence of Barry Sutton is relied upon by the Crown as an admission made by the accused. Barry Sutton is the brother of the accused. His credibility and reliability will be hotly contested. The witness has made a number of statements in addition to a recorded interview.
5. Given the extremely serious nature of the allegation, it is submitted that the accused is entitled to ensure that the jury is in the best position possible to observe the demeanour of Barry Sutton to properly assess his credibility and reliability.

Consideration

1. A "common sense approach" is not the relevant consideration in determining this application. Relevantly, s 5B(2) of the Act provides: "(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."
2. Pursuant to s 5B(3) of the Act, "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". In considering an application, the court should consider whether the preconditions under s 5B(2) of the Act are satisfied. It is only if they are satisfied that the court considers s 5B(3) of the Act: see R v Ngo (2003) 47 NSWLR 55; [2003] NSWCCA 82 ("Ngo") at [107].
3. In Ngo, the court stated at [108]: "Making a direction that the evidence of an accusing witness be received by audio visual link external to the court room must, by its very nature involve unfairness to an accused because it deprives him or her of a face-to-face confrontation with the witness. The provision cannot mean any unfairness, however small the court must consider the degree and effect of the unfairness. In a criminal trial, the best measure is whether the making of a direction will cause the trial to be an unfair one to the accused. An accused person has the fundamental right to a fair trial. A direction should not be made if it would mean that an accused would not have a fair trial."
4. In KN v R (2017) NSWLR 767; [2017] NSWCCA 249 ("KN"), an appeal was brought by the applicant against the trial judge's decision to grant Crown applications for witnesses to give evidence via AVL, pursuant to s 5B of the Act. Relevantly, at [66]-[67], the court stated: [66] … The use of AVL for the purpose of taking evidence is well established and there is a substantial body of authority on the exercise of the court's discretion to permit its use for that purpose. As the cases make clear, subject to the requirements of the legislation, the decision to permit evidence to be given by AVL is a matter for the primary judge's discretion in the circumstances of the particular case: see Kirby v Centro Properties Limited [2012] FCA 60; 288 ALR 601 at [11] per Gordon J; ASIC v Rich [2004] NSWSC 467; 49 ACSR 578 at [16] per Austin J. [67] While it has sometimes been acknowledged that the question whether the credibility of the witnesses in issue might be relevant to the decision to use AVL: see Kirby v Centro Properties Limited at [10]; ASIC v Rich at [27]-[28] and the cases cited therein; R v Qaumi and Ors (No 9) [2016] NSWSC 171 at [9] per Hamill J and Hughes v Whittens Group Pty Ltd [2017] NSWSC 329 at [21] per Button J, there are numerous decisions where it has been held that the demeanour of a witness could be adequately assessed by AVL: see ASIC v Rich at [24]-[26]; R v Wilkie, R v Burroughs, R v Mainprize (2005) 193 FLR 291; [2005] NSWSC 794 at [31]-[32] per Howie J; R v Lodhi [2006] NSWSC 587; (2006) 163 A Crim R 488 at [65] per Whealy J and the cases cited therein."
5. The increased use of AVL to facilitate witnesses giving evidence reflects a willingness to adopt technological mechanisms to reduce cost and inconvenience. However, such considerations do not replace the fundamental principle that an accused is entitled to a fair trial. While it is not in every case that constraining a party to cross-examine the witness by audio-video link will involve unfairness, the circumstances of a particular case may result in a determination that it is not in the interests of the administration of justice that a witness give evidence remotely.
6. In Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250 ("Antov"), Bell P (as his Honour then was, and with whom Bathurst CJ and Payne JA agreed) said at [50]: "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]."
7. The tension between that decision and the decision of the Court of Criminal Appeal in KN was noted by Hamill J in R v Abdaly; R v Hooseinishoja (No 4) [2022] NSWSC 1529, where his Honour said (after referring to KN at [67]-[68]): "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]."
8. The courts have increasingly utilised AVL facilities in proceedings involving criminal allegations, particularly during the COVID-19 pandemic which resulted in courts having to respond rapidly to ensure, as far as possible, that cases continue to be heard. During that period, some applications and hearings were conducted via AVL, although, for some of that period, jury trials were suspended. Legislation was introduced mandating that certain proceedings be conducted via AVL unless the court ordered otherwise. The pandemic forced courts to rely on technology more than ever before.
9. It is important, however, to bear in mind that the increased recourse to AVL facilities was a dramatic response to an unprecedented situation. The courts had to balance the need to continue to hear cases and dispense justice in a timely fashion, with avoiding the health risks posed by the pandemic. As restrictions eased, courts conducting criminal trials and hearings resumed face-to-face operations. There is no doubt that there has been an increased use of AVL facilities post the pandemic restrictions.
10. That does not mean, however, that cost efficiency and the desire to reduce inconvenience eclipse the fundamental right of an accused to a fair trial. In some cases, a fair trial will require the attendance of a witness in court to give evidence in person. That is because in some cases the evidence is crucial to the Crown case; the witness may have given several accounts, not all consistent; cross-examination may be impeded if the witness were to give evidence by AVL; and to the extent the demeanour is relevant to an assessment of credibility and reliability, attendance in person may provide a jury with a better opportunity to assess those factors. Each case will depend upon its particular circumstances.
11. In Rooney v AGL Energy Limited (No 2) [2020] FCA 942, Snaden J stated 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 Ltd [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."
12. These remarks were made in the context of a civil case. In a criminal case, particularly where the allegation is a serious one resulting, upon conviction, in the loss of liberty of the individual, it is all the more necessary to ensure that the particular circumstances of the case ensure that the entitlement to a fair trial is not too easily compromised for the sake of cost savings and convenience.
13. In the present case, Barry Sutton is an important Crown witness. His evidence is being relied upon by the Crown as an admission by the accused. When first interviewed by police on 4 February 1987, he made a statement in which he set out his contact with the accused in January of that year. He told police that the accused visited him in Bundaberg on 14 January 1987. They talked and caught up with family news and described the interactions as "nothing important". The witness told police that the accused had travelled to Queensland to inspect a new unit that he had bought on the Gold Coast. The brothers went to the pub a few times and enjoyed a barbecue for Barry Sutton's birthday. The accused left without notice.
14. It was not until May 2021, when a further statement was taken from Barry Sutton, that he told police that on the occasion the accused visited him in Bundaberg he told him that he had "gotten into a blue with a bloke in the park". The accused also said that he had travelled to Bundaberg because he thought that "the coppers might have been after him".
15. The Crown not only relies upon this evidence as an admission but also as evidence of flight, demonstrating consciousness of guilt. By the time of the second statement, the brothers had a falling out. Barry Sutton provided an account to the police that approximately six months after the accused had visited him in Bundaberg in 1987, he received a call from the accused during which they had an argument.
16. The proposed evidence is an important plank of the Crown case. It is hotly contested. Although Barry Sutton suffers from a number of medical conditions and requiring him to travel to Sydney will involve a deal of inconvenience, Dr Kerswill's ultimate evidence is that the witness is fit to travel to Sydney. While I am satisfied that the necessary facilities are available at Bundaberg Courthouse, in this case, I am not persuaded that it is in the interests of the administration of justice for the court to make a direction that Barry Sutton give evidence by way of audio-visual link.
17. Accordingly, I refuse the application.

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