R v Goldman [2004] VSC 165

5. Counsel for the accused informed me during the course of the application that it will not be contested that the accused shot Mr Kudryavstev. I do not apprehend that self-defence will be raised, but Mr Kudryavstev's account as to precisely how he came to be shot will be in issue as will his evidence of the accused's motive for shooting him. The accused and two co-accused, Dima Mendelis and Slavidir Moroz, face a presentment containing multiple counts of burglary and theft in the County Court. Alexander Kudryavstev is the principal witness upon whom the Crown relies in the County Court proceedings.

8. I heard evidence in support of this application and received submissions in closed court upon being satisfied that it was necessary to do so in order not to prejudice the administration of justice.[1] I shall not refer to the detail of such evidence or submissions but it is evident that some of the evidence that I received is likely to be repeated during the course of the trial.

12. It will be the Crown case that Alexander Kudryavstev, together with the accused and Dima Mendelis and Slavidir Moroz, were involved in multiple burglaries and thefts in the south-eastern area of Melbourne. On 5 July 2002, Mr Kudryavstev was arrested in relation to these matters. Shortly thereafter he commenced to co-operate with police investigators providing them with evidence against the accused, Mendelis and Moroz. The Crown alleges that on 10 July 2002 the accused attempted to kill Mr Kudryavstev to prevent him from providing further information or testifying against him or Mendelis or Moroz.

15. Evidence was called in the course of the closed hearing to support the opinion of each of the three police officers who testified that Mr Kudryavstev's safety remains at risk. Whilst I have formed no concluded view about the veracity of such allegations, I am satisfied that each of the officers holds a strong belief to that effect. These fears are held notwithstanding that the accused, Mr Mendelis and Mr Moroz have all been in custody since at least 2002.

18. I do not regard it as necessary to make any detailed references to the matters upon which the police officers relied in support of the opinions they held. They rely upon an incident that occurred when Mr Kudryavtsev was recuperating in hospital after he was shot by the accused, when certain persons attended at the hospital and attempted to ascertain his whereabouts. I am invited to infer that they attended for a sinister purpose. They rely upon threats made against the life of Mr Kudryavtsev by the accused and others subsequent to his shooting and they also rely on threats made to members of Mr Kudryavtsev's family overseas to induce Mr Kudryavtsev to cease to co-operate with the police. Those matters were clearly identified during the course of their evidence-in-chief and cross-examination. I say nothing about the reliability of any of the evidence supporting those allegations. Each of those matters, if true, would provide a reasonable basis for the officers' opinion that the accused or Mr Mendelis or Mr Moroz, or someone on their behalf, would further harm Mr Kudryavstev if the opportunity presented itself. Mindful as I am that I can make no findings of fact about these matters, it may be sufficient that there exists an appreciable risk of such an occurrence.

The Crown's application that Mr Kudryavstev give evidence by video link pursuant to s.43E Evidence Act 1958

22. The Crown's application that Mr Kudryavstev's evidence be given by video link is founded upon the risk to which Mr Kudryavstev would be exposed if he testifies in the usual way. The learned prosecutor submitted that Mr Kudryavstev would be exposed to risk of harm by attending and leaving Court and that those responsible for his safety could not guarantee it during such periods.

26. Mr Chadwick, who appeared on behalf of the accused, submitted that the alleged risk was more imagined than real, particularly having regard to the fact that the accused and his co-accused in the County Court trial had all been in custody since late 2002. Mr Chadwick further submitted that a number of the facts upon which the police officers relied were hearsay, of a tenuous nature or from an unreliable source and that I should not attach substantial reliance to them. He submitted that security was such that any risk to Mr Kudryavstev was illusory. As the credibility of Mr Kudryavstev was crucial to the accused's defence, he submitted that a fair trial necessitated that the accused be able to confront his accuser who should be required to testify in the presence of the jury.

29. Before the application in camera concluded, both parties agreed that I should make enquiries from the court's security unit as to the adequacy of the level of protection that could be made available.

33. The Victorian Evidence (Audio Visual and Audio Linking) Act came into operation in December 1997. By Part 2A Evidence Act 1958 the court has power to direct that a witness appear by audio or audio-visual link from any place within or outside Victoria or outside Australia. The Victorian Law Reform Commission in its report on Technology and the Law observed that such facilities provided unlimited opportunity for "protected witnesses to be able to provide evidence quickly, securely and cost-effectively from any location worldwide".[2] Video conferencing in Australia, the Commission reported, was primarily used to take evidence from vulnerable witnesses, including children though it is now in use in a wide range of contexts.[3]

36. Speaking of these statutory reforms and in particular those which permit complainants to give evidence via video recording (VATE) Winneke P in R v NRC[4] referred to the overriding obligation of the trial judge to ensure that such procedures do not expose the accused to the risk of an unfair trial.

39. Section 42E of the Act invests the court with a discretion either upon its own initiative or upon the application of a party to the proceedings to direct that a person may give evidence by audio-visual link. Where it makes a direction under s.42E of the Act the judge is bound to warn the jury not to draw any adverse inference to the accused person, or to give any evidence given by the witness any greater or lesser weight because of the making of the direction.[5] The court may at any time in the course of the proceeding vary or revoke a direction.[6]

42. It has long been the common law, with some exceptions, that witnesses who testify against an accused person should be in the presence of an accused when they testify. R v Dunne[7] and R v Reynolds[8] The human dimension of presence remains an important ingredient of the criminal trial process. Kerrison v Buxton[9]

46. The policy and forensic reasons which underlie the ordinary procedure that a witness give evidence before the accused and the tribunal of fact are set out in the judgment of Coldrey J in Kim v R[10] who quoted with approval a passage from the judgment of Giles J in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd[11] upon which I would also rely. Coldrey J was not persuaded that the use of a video link would prejudice the fairness of the accused's trial, notwithstanding the importance of those witnesses to the prosecution case. His Honour concluded that the procedure utilising video linkage complied with the dual requirements that the proceedings be sufficiently open to public scrutiny and that the demeanour of the witness be capable of adequate assessment using video linkage without prejudice to the accused. Cummins J reached a similar conclusion in DPP v Weiss (No 3).[12]

49. Some judges take the view that the apprehended disadvantages from the use of video links have not materialised as expected, the video link facility being utilised with great regularity and acceptance in court proceedings. B v Dentists Disciplinary Tribunal[13]; Studniberg v J P Morgan Australia Ltd[14]; Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd[15] and Australian Competition and Consumer Commission (ACCC) v World Netsafe Pty Ltd[16]

52. This view rests on the general proposition that a video link is, for practical purposes much the same as hearing evidence in court and that it does not pose a significant impediment to the assessment of a witness' demeanour. Bayer AG v Minister for Health[17]; Versace v Monte[18] and Reinsurance Australia Corporation Ltd v HIH Casualty & General Insurance Ltd (in liq)[19] In Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd[20] Katz J expressed the view that video link technology should be permitted in the absence of some considerable impediment telling against its use. (See also a number of Unreported Federal Court rulings referred to by Spender J in ACCC v World Netsafe Pty Ltd)[21]

55. There is another line of authority to the effect that there are well-recognised deficiencies associated with the taking of evidence by video linkage. Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd[22]; Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd[23]; ACCC v World Netsafe Pty Ltd[24] and Federal Commissioner of Taxation v Grbich & Shen[25] Palmer J in Australian Medical Imaging rejected the view expressed in Tetra Pak stating that video link should only be allowed on good reason being shown for the witnesses non-attendance. Conti J was to subsequently state in Moyette Pty Ltd v Foundation Healthcare Ltd[26] that the balance will weigh against video link where major issues of credit or voluminous and complex documents are to be deployed.

58. Even if video link evidence has the same qualities as evidence given in court the right of a party to confront those who testify against them and to do so in the presence of the tribunal of fact should be given great weight particularly as there may be a danger that the substance and manner of a witness' testimony may differ if the witness is not required to face the party against whom they testify. Whether the interests of justice will be served by permitting a different course must be approached with this factor in mind. Other relevant considerations will include the nature and extent of the dispute over the witnesses proposed testimony, the importance of the witnesses to the issues in the case and the technology available.[27]

61. In R v Ngo[28] Dunford J referred to an earlier ruling in the same case by Wood CJ at common law concerning the taking of evidence by video linkage for an indictable offence in which it was said:

".....The grant of leave for the giving of evidence by this means is discretionary. It depends upon an assessment whether the making of a direction for the use of a video link would advance the course of justice. (see Park v City Bank Savings Ltd (1993) 31 NSWLR 219 at 225). It is not to be overlooked in this respect that the interests of justice favour the reception of all available and relevant evidence in a criminal trial and that a fair trial is one that is fair both to the State as well as the accused. (see McKinney [1991] HCA 6; (1991) 171 CLR 468 at 488; Lowe [1997] NSWSC 160; (1997) 98 A. Crim. R. 300 at 318-9). There is precedent for the use of video linkage in criminal trials in other jurisdictions: Kyu Hyuk Kim (Supreme Court Victoria per Coldrey J, 17 October 1998 as well as in the New South Wales case of Bryant (Supreme Court of New South Wales, Hidon J, May 1999). In weighing this option, it needs to be borne in mind that the practice of requiring witnesses to give evidence orally and to be confronted in the presence of the jury ought not to be waived lightly."[29]

65. As Coldrey J observed in Kim's case, the very existence of Part 2A Evidence Act 1958 "indicates that it may be utilised by the courts in criminal trials".[30] The criteria for adopting video linkage is not set out in the legislation. By contrast, the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) though very similar in language, contains a prohibition in s.5B(2)(c) against making such a direction if it would be unfair to the accused. Although no such prohibition expressly appears in Part 2A of the Victorian Act, such a limitation is, in my view, to be implied.

69. It is well recognised that as a matter of statutory construction a legislative provision which varies the common law must be construed as doing so only so far as is necessary to give effect to that provision.[31] There is nothing in s.42E, or Part 2A of the Act, to suggest that it was Parliament's intention that such a procedure should be directed, if by its utilisation, the accused was unlikely to obtain a fair trial. Section 42F of the Act, which is concerned with certain proceedings involving children does prohibit a court from making a direction under s.42E(1) unless such a direction is consistent with the interests of justice.[32] Although s.42E of the Act makes no reference to the "interests of justice", it would be consonant with the common law to construe the section as including such a requirement. Both Coldrey J in Kim's case and Cummins J in Weiss' case were clearly of the view that a direction should not be made pursuant to s.42E if recourse to such a procedure were to produce an unfair trial for the accused.

72. The prejudice which may flow from an unsatisfactory use of the VATE[33] procedure resulting in the infringement of the accused's realistic opportunity of testing the witness was the subject of comment in R v NRC.[34] Winneke P was to subsequently observe in R v Knigge[35] that:

".....courts should be astute to the fact that such technology, and the legislation which facilitates its use in criminal trials, has a capacity to distort the adversarial aspects of the criminal justice system which the common law rules of criminal procedure regarded as indispensable to a fair trial......."[36]

77. The accused relies upon the fundamental common law right to have the Crown case presented in his presence and hearing so that he may test the evidence by cross-examination. R v McHardie & Danielson[37] and R (Al-Fawwaz) v Governor of Brixton Prison[38] Although this procedure entails a number of rights, it is the proposition that confrontation is a fundamental right of an accused which is presently in issue. The importance of an accusation being made in the accused's presence and in circumstances where it can be properly assessed by the Tribunal of fact is self-evident. Yet the law has come to recognise that there are circumstances in which there may be a departure from the "right of confrontation". One such circumstance employed by consent in the course of the closed proceedings before me was the right of the police witness responsible for the safety of Mr Kudryavstev to use a pseudonym. Counsel, in acknowledging the propriety of this course were giving recognition to the public interest in preserving the personal safety of an informer, an interest pursued, not as a matter of expediency but as an object in itself. Jarvie v Magistrates' Court of Victoria;[39] R v Savvas & Ors[40] and C v R[41]

80. The interests of justice have sometimes been secured by removing the accused from the presence of the witness where it was feared that the accused would intimidate the witness. R v Smellie[42]

83. Another measure constituting an exception to the accused's fundamental right to face his accusers arises in circumstances where a witness has been permitted to give evidence from behind a screen. R v Taylor[43]; R v Watfid Magistrates' Court Ex-parte Lenman[44]; Re DJX & Ors[45]; R v Sparkes[46]; R v Accused[47] and R v West[48]

86. In R v Ngo[49] the New South Wales Court of Criminal Appeal found that the decision to allow witnesses to give evidence by video link had not infringed the right of the accused to a fair trial. The Court of Appeal referred to the recent English decision of R (on application for D) v Camberwell Green Youth Court & Ors[50] concerning a trial involving the receipt of evidence by video link where the question arose as to whether the enabling legislation breached the right to a fair trial under Article 6 of the European Convention on Human Rights. No absolute right of an accused to face to face confrontation with his accuser was found to exist, though as a general principle witnesses and defendants should be present and in sight of each other. It was recognised that the capacity to reassure a witness through the use of a video link was an important safeguard to the rights of witnesses which needed to be balanced against the rights of an accused.

89. Jarvie v Magistrates' Court of Victoria[51] contains an enlightening examination of the extent to which the right of confrontation, although entrenched in the Sixth Amendment of the United States, has nevertheless been diluted. A similar analysis of authority in England, Wales, Canada and New Zealand by the New South Wales Court of Appeal in R v Ngo[52] reveals that the right to face to face confrontation is not an absolute one. As the Court of Appeal observed:

"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." [53]

93. Speaking of the New South Wales provisions which permit evidence by audio-visual means, the Court of Appeal concluded that the prohibition against an unfair trial cannot mean any unfairness, however small. The Court declared that a direction should not be made if the accused could not have a fair trial. That was to be determined by considering the degree and effect of the unfairness.

96. Much of what was said by the Victorian Court of Appeal in Jarvie is apposite to the present circumstances. In Jarvie's case and in R v Ngo[54] reference is made to the balancing exercise that must be undertaken. The right of the accused to a fair trial and, more particularly, to exercise his right of confrontation, must be balanced against those public interest considerations which the Crown relies upon in seeking to utilise this procedure. As Brooking J observed in Jarvie's case, a fair trial does not mean a perfect trial free from any possible disadvantage to the accused. This observation echoed the views expressed by the High Court in Jago v District Court of New South Wales[55]; R v Glennon[56] and Dietrich v R.[57]

99. In R (Al-Fawwaz)[58] Lord Hutton referred to a portion of the judgment of the Court of Appeal in R v Taylor[59] which dealt with the factors which a judge should balance in the exercise of the judge's discretion when determining whether to preserve the anonymity of a witness testifying against an accused. Amongst those factors are those relevant to the exercise of the discretion to permit a procedure inconsistent with the accused's right to confront their accuser which can be summarised as follows:

1. The evidence must be sufficiently relevant and important to make it unfair to make the Crown proceed without it.

2. The Court must be satisfied that there would be no undue prejudice to the accused.

3. The Court should balance the need for protection of the witness including the extent of that protection, against unfairness or the appearance of unfairness."[60]

His Lordship considered some prejudice inevitable where the accused could not confront the witness as accuser but that the use of video screen would constitute a counter-vailing factor.

106. Speaking of the place of technological aids within the trial process Eames JA in R v Lyne[61] was to sound this caution:

".....the use of modern technology and the convenience and efficiency it offers for Court users, including jurors, must not be, nor need it be, to the prejudice of the high standards of fairness which are fundamental to our criminal justice system."[62]

111. The accused's right to confrontation and the forensic advantages that may flow therefrom needs to be balanced against the need to protect the witness against the risk of harm. The witness, whose present location is secret, will, by attending Court to give evidence, be exposed to the risk of harm.

114. With the consent of both parties, I consulted with those responsible for court security and was provided with a report. The report will be marked confidential and should be retained on the court file. In summary, the report is confirmatory of the evidence placed before me that Mr Kudryavstev's safety cannot be assured if he is required to attend this Court and give evidence. In the unusual circumstances of this case where there is a real risk of harm to the witness and to others in the court's environment if he is required to attend this Court, I am compelled to conclude that the Crown should be permitted to have him give evidence from a remote location via video link.

117. The jury will have a full opportunity to observe the demeanour of the witness on a large screen with a "close up" view of the witness' head and upper body. I do not anticipate that the substance of the witness' evidence is likely to be affected by the fact that he is testifying from a remote location. He was cross-examined at some length via video link at the committal proceedings.

120. I have no present expectation that the interests of justice will not be served by the utilisation of this procedure, or that the accused will be prejudiced in his defence so as to render his trial unfair. Mr Kudryavstev should not, therefore, be required to attend court to testify. I will grant the Crown's application and direct that he give evidence by audio-visual link.

123. In the event that I form the view prior to the utilisation of this procedure that the accused's fair trial is likely to be jeopardised, I may, on my own initiative or on the application of either party, vary or revoke the direction.[63] Section 42E(3). In the event that I form such a view subsequent to the utilisation of this procedure, the court has ample powers to ensure that there is no miscarriage of justice.

[1] See s.19(b) Supreme Court Act 1986.

[2] VLRC (1999) "Technology and the Law" at [10.40].

[3] Supra Footnote 2 Victorian Law Reform Commission Report.

[4] [1999] VSCA 184; [1999] 3 VR 537.

[5] See s.42V Evidence Act 1958.

[6] See s. 42E(3) Evidence Act 1958.

[7] (1928) 21 Cr App Rep 176.

[8] [1950] 1 KB 606.

[9] [2000] TASSC 135; (2000) 9 Tas R 276 and [2000] TASSC 135 per Slicer J at paragraph 8.

[10] [1998] VSC 215; (1998) 104 A Crim R 233 at 235.

[11] Unreported NSWSC 11 March 1997, 50006 of 1996 - BC 9700538.

[12] (2002) VSC 15 at paragraph 8.

[13] [1994] 1 NZLR 95 at 105.

[14] [1998] NSWIRComm 483.

[15] [2000] FCA 1261.

[16] (2002) 119 FCR 303; [2002] FCA 526.

[17] (1988) 96 FLR 50 at 116 per Young J.

[18] [2001] FCA 1454.

[19] [2002] FCA 1549.

[21] See Unreported FCA 24 April 2002 at paragraph 6.

[23] (2001) 53 NSWLR 1; [2001] NSWSC 651 per Palmer J.

[24] Supra Footnote 16 Unreported FCA 24 April 2002 per Spender J at paragraph 7.

[25] (1993) 31 ALD 97 per Beaumont J.

[26] [2003] FCA 116 at paragraph 10.

[27] Fitzsimmons, T (2004) `Evidence by Audio Visual Link in the Supreme Court of Victoria' 78 LIJV March at 40-43.

[28] [2001] NSWSC 339 per Dunford J.

[29] Supra [2001] NSWSC 339 at paragraph 10 per Dunsford J.

[30] Supra Footnote 10 Kim v R at 234.

[31] See Pearce, D.C_. et al_ (2001) Statutory Interpretation in Australia (5th ed.), Chatswood, NSW, Butterworths, at 5.22; See also R v Panazzo [2003] VSCA 184.

[32] See s.42F(3) and s.42F(5) Evidence Act 1958.

[33] See s.37B Evidence Act 1958. See also Corns, Chris. (2004) `Videotaped Evidence in Victoria - Some Evidentiary Issues and Appellate Court Perspectives' 28 Crim. L.J. 43 -53.

[35] [2003] 6 VR 181; [2003] VSCA 94.

[36] Supra Footnote 35 [2003] VSCA 94 at paragraph 30 per Winneke P.

[37] (1983) 2 NSWLR 733 at 739.

[38] [2001] UKHL 69; [2002] 1 AC 556; [2002] 1 All ER 545.

[39] [1995] VicRp 5; [1995] 1 VR 84 at 88.

[40] (1989) 43 A Crim R 331.

[41] (1993) 67 A Crim R 562 at 564.

[42] (1919) 14 Cr App Rep 128.

[43] (1994) TLR 484.

[44] [1993] Crim LR 388.

[45] (1990) 91 Cr App Rep 36.

[46] {1996} 6 Tas R 178; (1996) 88 A Crim R 194 at 217.

[47] [1988] NZCA 250; [1989] 1 NZLR 660.

[48] [1992] 1 Qd R 227; (1990) 51 A Crim R 317.

[49] (2003) 57 NSWLR 55; [2003] NSWCCA 82.

[50] [2003] EWHC 227; [2003] All ER (D) 32.

[53] Supra Footnote 49 at paragraph 108.

[55] [1989] HCA 46; (1989) 168 CLR 23.

[56] [1992] HCA 16; (1992) 173 CLR 592.

[57] [1992] HCA 57; (1992) 177 CLR 292.

[58] [2001] UKHL 69; [2002] 1 All ER 545 at 570.

[59] (1994) TLR 484.

[60] Supra Footnote 58 R( Al-Fawwaz) at 570 per Lord Hutton.

[61] 2003 VSCA 118.

[62] Supra Footnote 61 R v Lyne at paragraph 31.

[63] See s.42E(3) Evidence Act 1958.