R v Kyu Hyuk Kim [1998] VSC 215

5. That application was made by Mr Elston on behalf of the Crown on 7 December 1998. It was opposed by Mr Morrissey on behalf of the accused Kim.

8. On the material it appears that the witness Kang remains willing to give evidence in this trial. However, he remains unwilling to return to Australia to do so, having previously given evidence in the first trial of this accused before returning to settle with his family in South Korea. It is common ground that he cannot be compelled to return to this jurisdiction.

11. The warrant for the use of evidence by way of video-link is found in s.42E of the Act. The relevant portions of that section read:

"(1) Subject to ... any rules of court, a court may, on its own initiative or on the application of aparty to the legal proceeding, direct that a person may appear before, or give evidence or make a submission to, the court by audio-visual link ... from any place ... outside Australia that is outside the courtroom or other place where the court is sitting.

(2) A court must not make a direction under sub-section (1) unless it is satisfied that the technical requirements specified in section 42G are met, or can reasonably be met, in the case of the particular link.

(3) The court may, at any time in the course of a proceeding, vary or revoke a direction under sub-section (1) either on its own initiative or on the application of a party to the proceeding ... "

17. Mr Elston informed the court that he had conducted a test of the video-link to Seoul and that the standard of reception had been excellent. (A videotape of the exercise as viewed through the tipstaff's monitor was produced to the court.) It was further indicated by Mr Elston that the video-link technique had been previously used in at least one criminal trial in this court. It appears therefore that the technical requirements specified in s.42G of the Act can be met using the equipment available in the Supreme Court.

20. It was common ground that the evidence of the witness Kang could be expected to occupy three to four days of court time.

23. The criteria for adopting the proposed course are not set out in the legislation relating to video-link but the very existence of the legislation indicates that it may be utilized by the courts in criminal trials. In determining whether this should occur, a court should have regard to the interests of justice (see s.9B of the Act) or, to adopt the phrase used by Powell, J. in Park v. Citibank Savings Ltd. & Anor. (1993) 31 N.S.W.L.R. 219 at 225 whether the receipt of evidence through video-link would "advance the cause of justice".

26. It was submitted by Mr Elston that justice in this case required not only that the rights of the accused be considered, but also the rights of the community to have the most serious crime of murder prosecuted to its proper conclusion.

29. It was put that the use of the video-link technique would enable the jury to observe the demeanour of the witness as he gave evidence both in evidence-in-chief and cross-examination. Moreover, since Kang was to be in the witness box for three to four days, the jury would have an excellent opportunity to make this assessment. Further, the jury would be able to ask questions of the witness and the accused would be able to give his counsel immediate instructions in relation to the evidence given. In short, some of the disabilities to which I adverted in my earlier ruling would not be present using this technology.

32. In the course of argument Mr Elston referred me to the civil case of Lamesa Holdings BV v. Commissioner of Taxation (an unreported decision of Sackville, J. delivered 30 July 1988). This was a taxation appeal in which it was sought to take evidence by video-link from witnesses who were overseas, and to do so purely as a matter of convenience. Ultimately, it became possible for these witnesses to give evidence in person without significant disruption to, or inconvenience in, their professional or personal lives. That, of course, is not the present case.

35. The report of this judgment which was provided to me does seem somewhat truncated, but it has His Honour referring to comments by Giles, J. in Sunstate Airlines (Qld.) Pty Ltd v. First Chicago Australia Securities Ltd (an unreported decision of Supreme Court of New South Wales delivered 11 March 1997). In the course of that judgment Giles, J. remarked:

"The ordinary procedure [that witnesses give evidence in Court] is as stated above and there are sound reasons for following it unless cause to the contrary be shown. The conduct of proceedings in open court, available to public scrutiny, is of great importance. Cross-examination may be more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of delay in voice transmission, or for other reasons, and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the Court is assisted in fact finding by observance of what is misleadingly called the demeanour of the witnesses, upon which the taking of video evidence may impact. All that said, particularly where the evidence is relatively uncontroversial, the cross-examination is not likely to be lengthy, or no real issue of credit is involved, the taking of video evidence can be beneficial to the administration of justice and consistent with justice between the parties. It may permit the Court to receive the evidence of a witness which would otherwise not have been available, it may permit the evidence to be received without causing undue inconvenience to witnesses (which should be an important matter in the administration of justice), and it is now a feature of litigation - so much so that for some years the Federal Court of Australia has had in place the video conference facilities proposed in the present proceedings."

39. In considering this passage it is pertinent to note that the necessary public scrutiny may still occur with video-link, the production of documents need not occasion difficulty, there is no real delay in voice transmission, and the demeanour of a witness may be assessed using video-link, (with such assessment, as I have already mentioned, being facilitated by the length of time a witness is in the witness box). Indeed, Giles, J. added that experience had shown that demeanour could adequately be assessed using video-link facilities. He cited (inter alia) B. v. Dentist Disciplinary Tribunal [1994] 1 N.Z.L.R. 95 at 108, a case to which I shall refer shortly, as authority for that proposition. Further, in relation to the issue of the credit of a witness, Sackville, J. disavowed the proposition that video-link would always be inappropriate where a witness's credit was likely to be challenged.

42. In opposing the application, Mr Morrissey first canvassed what he described as public policy objections.

45. The first of these was that to allow the application would tend to compromise the principle that witnesses ought to testify before a jury in person. No doubt that is the desirable and normal manner in which witnesses should give evidence. Of course the legislature has already provided for evidence to be given in other forms, two of which were previously canvassed, namely by way of depositional material or by the use of evidence taken from witnesses outside Australia (which may, for example, be video-taped). As stated earlier, the very existence of s.42E of the Act indicates that it is Government policy that evidence also be given by way of video-link.

48. Given the qualities of the video-link evidence to which I have already adverted, I do not think this objection has any substance.

51. The second public policy ground related to the ability of a judge to control the court process and, in particular, any witness before it. As a general proposition, I would regard the effect of any so-called "loss of control" to be negligible.

54. It was nonetheless put by Mr Morrissey, with reference to passages in the transcript of the first trial of this matter, that the trial judge, on occasions, had to direct the witness Kang to answer questions and to that extent found it necessary to exert control. However, it does not appear on a reading of the relevant passages that, except for one avenue of questioning, the judge needed to do any more than tell the witness to answer particular questions, after which he did so. Such an objection must also be seen in the context of the power of the trial judge to effectively terminate the video-link process if the conduct of the witness is such that, in the court's view, it adversely affects the fairness of the trial.

57. The third policy objection was that the legislation itself had its genesis, not in relation to trials such as the present one, but in relation to the evidence of children in sexual cases. It is, I think, sufficient to note that the legislation, which has already been invoked in trials other than those involving sexual offences, is not, on its face, so limited.

60. Mr Morrissey then advanced a number of arguments relating to the question of what was required by way of fairness to the accused. A number of these were dealt with in argument on the previous occasion and I do not intend to repeat my comments in relation to them.

63. In advancing these submissions, Mr Morrissey very correctly drew the court's attention to the case of B. v. Dentists Disciplinary Tribunal (ibid). This was a decision of Williams, J. of the New Zealand High Court in which he discussed the use of video-link evidence in the courts and collected the relevant case law (see pp.107-110). A number of the matters advanced by Mr Morrissey, for example, the assertion that a "video witness" would be more composed than a live witness, that spontaneity of cross-examination would be prejudiced, and that the system would prevent the assessment of the demeanour of the witness in relation to credibility were considered by Williams, J. and rejected. I respectfully agree with His Honour's conclusions.

66. It is acknowledged that the witness Kang is central to the Crown case and that the matters raised by Mr Morrissey are important considerations. A court permitting the use of video-link evidence would need to be alert to these matters and, if necessary, direct the jury in relation to them. If they assumed a magnitude which prejudiced the fairness of the trial, it may be necessary to terminate the video-link with the possible consequence of discharging the jury.

69. The decision to permit evidence by way of video-link will necessarily be made according to the circumstances of each individual case. In the instant case it is my view that, in the circumstances I have outlined, it is in the interests of justice (or would advance the cause of justice) to utilize this new technology. The courts of this State should embrace the new technologies of the 20th and 21st Centuries which facilitate the trial process and where the use of such technology is consistent with the basic principles of justice.