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[2025] NSWCCA 62
Court of Criminal Appeal (NSW)
2025-05-02
Harrison CJ at CL at [1]Dhanji J at [2]McNaughton J at [70]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Walker [2025] NSWCCA 62
Hearing dates: 14 March 2025
Date of orders: 14 March 2025
Decision date: 02 May 2025
Before: Harrison CJ at CL at [1]
Dhanji J at [2]
McNaughton J at [70]
Decision: Reasons for orders made on 14 March 2025:
(1) Allow the appeal.
(2) Set aside the order of his Honour Judge Everson SC made on 13 March 2025.
(3) Remit the matter to the District Court in order that the application be determined according to law.
(4) The Court will provide written reasons in due course.
Catchwords: CRIME – appeals – Crown interlocutory appeal – sexual offences – whether trial judge erred in refusing Crown application to discharge jury – where discharge application based on directions given by trial judge – where trial judge relied on R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 – directions inconsistent with s 294B(7) of the Criminal Procedure Act 1986 (NSW) – directions carried real risk of elevating importance of demeanour – wrong principle – error in determination of application – appeal allowed – matter remitted to be determined according to law
EVIDENCE – witness evidence – evidence in sexual offence proceedings – evidence given by alternative arrangements – impact of evidence given by audio visual link – judicial attitudes – research – not equivalent to testimony in courtroom – weaker standard of communication – may affect opposing or calling party – beneficial or detrimental to witness – Kennedy Nixon presidential debate – impact may not be ascertainable
EVIDENCE – directions to jury – evidence given by audio visual link – directions in ordinary case likely to contravene s 294B(7) – s 294B(7) cannot convert poor evidence into clear evidence – available direction where impact of audio visual link capable of being identified – direction as to particular quality of evidence – example direction provided
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5F, 12
Criminal Procedure Act 1986 (NSW), ss 4, 294B
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 3, 5B, 5BAA
Cases Cited: Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250
Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504
Capic v Ford Motor Company of Australia Ltd [2020] FCA 486
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jago v the District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
Kahil v R [2020] NSWCCA 56
Khazaal v R [2011] NSWCCA 129
KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249
Maric v The Queen (1978) 52 ALJR 631
Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486
Palmer v McGowan (No 2) [2022] FCA 32; (2022) 398 ALR 524
R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529
R v Alexandroaia (1995) 81 A Crim R 286
R v Early (No 4) [2023] NSWSC 505
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 11) [2020] NSWSC 382
R v NE [2021] NSWCCA 54
R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794
R v Youseff (No 3) [2024] NSWSC 1261
Rooney v AGL Energy Limited (No 2) [2020] FCA 942
Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 14
The King v ZT [2025] HCA 9
Texts Cited: Anne Bowen Poulin, 'Criminal Justice and Video Conferencing Technology: The Remote Defendant' (2004) 78(4) Tulane Law Review 1089.
Beatrice de Gelder, ‘Towards the Neurobiology of Emotional Body Language’ (2006) 7 Nature Reviews Neuroscience 242.
Blake McKimmie, Barbara Masser and Renata Bongiorno, ‘Looking Shifty but Telling the Truth: The Effect of Witness Demeanour on Mock Jurors’ Perceptions’ (2014) 21(2) Psychiatry, Psychology and Law 297.
Dacher Keltner and Jennifer Lerner, ‘Emotion’ in Susan Fiske, Gilbert Daniel and Lindzey Gardner (eds) Handbook of social psychology (John Wiley & Sons Inc, 5th ed, 2010) 317.
David Tait and Vincent Tay, 'Virtual Court Study: Report of a Pilot Test 2018' (Research Report, Western Sydney University, 16 October 2019).
Elena Bild et al, ‘Sound and Credibility in the Virtual Court: Low Audio Quality Leads to Less Favorable Evaluations of Witnesses and Lower Weighting of Evidence’ (2021) 45(5) Law and Human Behavior 481.
Judicial Commission of NSW, Criminal Trial Courts Bench Book.
Justice David Ipp, ‘Problems with fact-finding’ (2006) 80 Australian Law Journal 667.
Justice Peter McClellan, ‘Who is telling the truth? Psychology, common sense and the law’ (2006) 80 Australian Law Journal 655.
Kyle Denning, ‘Fully Online Civil Proceedings: Risks, Rewards and the Rule of Law’ (2024) 98 Australian Law Journal 210.
Marilyn Krawitz and Justine Howard, ‘Should Australian courts give more witnesses the right to Skype?’ (2015) 25 Journal of Judicial Administration 44.
Michael Legg and Anthony Song, ‘The Courts, the Remote Hearing and the Pandemic: from Action to Reflection’ (2021) 44(1) UNSW Law Journal 126.
Michael Roth, ‘Laissez-faire Videoconferencing: Remote Witness Testimony and Adversarial Truth’ (2000) 48 UCLA Law Review 185.
New South Wales Legislative Assembly, Second Reading Speech, Criminal Procedure Amendment (Sexual Offence Evidence) Bill 2004 (Hansard), 14 May 2004.
New South Wales Legislative Council, Second Reading Speech, Criminal Procedure Amendment (Sexual Offence Evidence) Bill 2004 (Hansard), 24 June 2004.
Robert Fisher, ‘The Demeanour Fallacy’ (2014) 4 New Zealand Law Review 575.
Russell Smith, Rebecca Savage and Catherine Emami, ‘Audiovisual link technologies in Australian criminal courts: Practical and legal considerations’ (Research Report No 22, Australian Institute of Criminology, 2021).
Susan Bandes and Neal Feigenson, ‘Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom’ (2020) 68(5) Buffalo Law Review 1275.
Category: Principal judgment
Parties: Rex (Appellant)
Scott James Walker (Respondent)
Representation: Counsel:
B Hatfield SC (Appellant)
P Segal (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Appellant)
Criminal & Traffic Law (Respondent)
File Number(s): 2023/00230378
Publication restriction: Statutory prohibition over the name of the
complainant or anything tending to identify her,
pursuant to s 578A of the Crimes Act 1900 (NSW).
[This headnote is not to be read as part of the judgment]
The Crown, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), appealed against the decision of Everson SC DCJ at the District Court of New South Wales at Penrith to refuse the Crown’s application to discharge the jury. The sole ground of appeal was that his Honour erred by refusing the Crown’s application to discharge the jury.
At the time the appeal was heard, the respondent, Scott James Walker, was before the District Court, facing trial by jury on indictment for five counts of sexual intercourse without consent, two counts of intimidation and one count of break and enter with intent to commit a serious indictable offence, all in relation to the same complainant. On 12 March 2025, Everson SC DCJ raised an issue with the parties as to whether a direction should be given to the jury in relation to evidence given by audio visual link (“AVL”). The following day, the Crown submitted that the proposed direction was, insofar as it applied to the complainant, contrary to s 294B(7) of the Criminal Procedure Act 1986 (NSW), would result in a trial that was unfair to the Crown, and should not be given. The trial judge rejected the submissions and completed his summing up, which included the impugned direction. At the conclusion of the summing up, the Crown made an application to the trial judge that the jury be discharged. The application was refused. On the afternoon of 13 March 2025, the Crown filed a notice of appeal to this Court. A court was convened as a matter of urgency to sit at 10:15am the following morning.
At the hearing of the appeal, the Court made orders allowing the appeal, setting aside the order made by Everson SC DCJ on 13 March 2025 and remitting the matter to the District Court in order that the application be determined according to law.
The Court held (per Dhanji J, Harrison CJ at CL and McNaughton J agreeing), providing reasons for joining the orders made on 14 March 2025:
Kahil v R [2020] NSWCCA 56, R v Alexandroaia (1995) 81 A Crim R 286 and R v NE [2021] NSWCCA 54 cited.
House v The King (1936) 55 CLR 499; [1936] HCA 40 cited.
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Société d'Avances Commerciales *(*Société Anonyme Egyptienne) v Merchants' Marine Insurance Co *(*The “Palitana”) (1924) 20 Ll L Rep 140 and Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219 cited.
Crofts v The Queen (1996) 186 CLR 427 at 440; [1996] HCA 22, Jago v the District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46, Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486, Khazaal v R [2011] NSWCCA 129 and Maric v The Queen (1978) 52 ALJR 631 cited.
HARRISON CJ at CL: The direction given to the jury by the trial judge, which is the subject of the present application, was erroneous for the reasons explained by Dhanji J in his judgment, with which reasons I agree. Notwithstanding that error, in accordance with the orders of this Court made at the hearing of the application, it was preferable in the circumstances of this case to remit the matter to his Honour with a view to withdrawing the impugned direction and redirecting the jury in suitable terms in a way, if possible, that corrected or neutralised the error while maintaining the trial or taking such other course as his Honour may have considered appropriate. The error did not automatically mandate that the jury should be discharged and did not mean that a suitably framed redirection could not ensure that Mr Walker’s trial was fair.
DHANJI J: By notice of appeal filed on 13 March 2025, the Crown, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), appealed against the decision of Everson SC DCJ at the District Court of New South Wales at Penrith to refuse the Crown’s application to discharge the jury. The sole ground of appeal was as follows:
“The trial judge erred by refusing the Crown’s application to discharge the jury.”
The Crown’s application that the trial judge discharge the jury was made on the basis of a direction given by him in relation to the jury’s evaluation of evidence given by “video link”, referred to in this judgment as audio visual link (“AVL”). For the purpose of these reasons, I will use the term “AVL” to mean facilities that enable audio and visual communication between persons at different places including closed-circuit television (“CCTV”), consistent with the definition in s 3(1) of the Evidence *(*Audio and Audio Visual Links) Act 1998 (NSW) (“the AVL Act”).
On 14 March 2025, this Court heard the appeal and made the following orders at the conclusion of the hearing:
Allow the appeal.
Set aside the order of his Honour Judge Everson SC made on 13 March 2025.
Remit the matter to the District Court in order that the application be determined according to law.
The Court will provide written reasons in due course.
The appellant had sought orders that the appeal be allowed and that the jury be discharged. Prior to making the above orders, the Court indicated to the parties that, despite having formed the view that the trial judge had erred, we were not prepared to order that the jury be discharged. The parties were advised that, while the Court was of the view the direction given by the trial judge was in error, it remained open to his Honour, on remitter, to reconsider the discharge application in the light of the potential for further directions to be given to remedy the error in the impugned direction.
My reasons for joining in the orders follow below.
“Count 1 On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did have sexual intercourse with [JS], without the consent of [JS], knowing she was not consenting.
Count 2: On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did have sexual intercourse with [JS], without the consent of [JS], knowing she was not consenting.
Count 3: On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did have sexual intercourse with [JS], without the consent of [JS], knowing she was not consenting.
Count 4: On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did intimidate [JS] with the intention of causing [JS] to fear physical or mental harm.
Count 5: On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did have sexual intercourse with [JS], without the consent of [JS], knowing she was not consenting.
Count 6: On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did have sexual intercourse with [JS], without the consent of [JS], knowing she was not consenting.
Count 7: On 19 July 2023, at XXXXXXXXX and elsewhere in the State of New South Wales, did intimidate [JS] with the intention of causing [JS] to fear physical or mental harm.
Count 8: On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did break and enter the dwelling-house of [JS] at XXX XXXXXXXXX XXXX, XXXXXXXXX, with intent to commit a serious indictable offence therein, namely, intimidation.”
The trial began on 3 March 2025. On 11 March 2025, the trial judge commenced his summing up. On 12 March 2025, due to the absence of a juror, the Court did not sit. In the absence of the jury, the trial judge raised an issue as to whether a direction should be given to the jury in relation to evidence given by AVL, referring the parties to the decision of R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 (“Wilkie”) at [72]. The following day, the Crown prosecutor submitted that the proposed direction was, insofar as it applied to the complainant, contrary to s 294B(7) of the Criminal Procedure Act 1986 (NSW), would result in a trial that was unfair to the Crown, and should not be given. The trial judge rejected the prosecutor’s submissions and completed his summing up, which included the impugned direction.
At the conclusion of the summing up, the Crown made an application to the trial judge that the jury be discharged. The application was refused.
On the afternoon of 13 March 2025, the Crown filed a notice of appeal to this Court. A court was convened as a matter of urgency to sit at 10:15am the following morning.
On the evening of 13 March 2025, the Crown provided a court book comprising a notice of appeal, a ground of appeal, an indictment, an amended Crown Case Statement and transcripts of all five days of the trial, including the addresses of counsel (but not including the summing up). Later that evening, the Crown provided an additional bundle of material comprising relevant extracts of the Criminal Procedure Act and the AVL Act, an extract of the Criminal Trial Courts Bench Book issued by the Judicial Commission of NSW on “Evidence given by alternative means”, and the second reading speeches in the Legislative Assembly and Legislative Council with respect to the Criminal Procedure Amendment (Sexual Offence Evidence) Bill 2004 (NSW).
At the hearing, the Crown read two affidavits of Daniel Oraha, the solicitor with carriage of the matter on behalf of the Director, sworn on 13 and 14 March 2025. The first affidavit of Mr Oraha contained a summary of the trial, including the series of events leading to the trial judge giving the direction in issue to the jury. Annexed to the affidavit was an indictment, a Crown Case Statement, and notes of the summing up authored by Mr Oraha and Alistair Tonks, Solicitor Advocate. The second affidavit of Mr Oraha annexed two transcripts of audio files which had been provided by the Court’s Reporting Services Unit. The transcripts related to, respectively, the portion of the proceedings in which the direction in issue was given to the jury by the trial judge, and the portion of the proceedings in which the Crown made an application to discharge the jury. These transcripts were generated by the use of an audio to text computer program, the product of which was then reviewed and amended by Mr Oraha and Mr Tonks. The parties proceeded on the basis that these transcripts were accurate. The Court, accordingly, proceeded on the same basis.
5F Appeal against interlocutory judgment or order
(1) This section applies to—
…
(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.
(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings—
(a) if the Court of Criminal Appeal gives leave to appeal, or
…
(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.
(5) The Court of Criminal Appeal—
(a) may affirm or vacate the judgment, order, decision or ruling appealed against, and
(b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against.
…
“[Earlier in my summing up], I referred to the fact that some witnesses gave their evidence via an audio visual link. I directed you that you should not give that evidence any greater or lesser weight simply because it was given in that manner and that you should assess that evidence in the same way that you assess the evidence of any other witness in the case. And there’s a further direction on this issue for you to follow and apply. The credibility of any one or more of the witnesses may be a crucial issue in the resolution of the charges against the accused. Any difficulty you might encounter in assessing the credibility of a witness by reason of the fact that the evidence was adduced before you, by the use of a video link, should be resolved in favour of the accused. So if you thought that demeanour might be important, and you were having difficulty in assessing the demeanour of a witness by the restrictions or limitations placed upon that task because of the use of the video link, that might be a matter that would give rise to a doubt about whether you could rely upon the witness and therefore may give rise to a doubt that the prosecution had proved its case.”
The direction on its face applied to all of the witnesses who had given evidence in the trial by way of AVL. There were five such witnesses in total, the complainant and four others. Of those four witnesses, two were witnesses who gave evidence of a complaint made by the complainant to the witness and with respect to whom there was no cross-examination. The other two witnesses were, respectively, a nurse who saw the complainant in a professional capacity and an employee of the Forensic and Analytical Science Service. While there was some limited cross-examination of these witnesses, their credibility was not challenged. Thus, while the impugned direction was framed in general terms, the practical reality was that the direction applied only to the complainant.
It is convenient to first deal with the central issue of whether the impugned direction given by his Honour was contrary to s 294B(7) of the Criminal Procedure Act insofar as it applied to the complainant, and then for completeness, to deal with the appropriateness of the direction with respect to the other witnesses.
294B Giving of evidence by complainant in prescribed sexual offence proceedings—alternative arrangements
…
(3) A complainant who gives evidence to which this section applies is entitled (but may choose not)—
(a) to give that evidence from a place other than the courtroom by means of closed-circuit television facilities or other technology that enables communication between that place and the courtroom; or
…
294B Giving of evidence by complainant in prescribed sexual offence proceedings—alternative arrangements
…
(7) In any proceedings in which evidence is given as referred to in subsection (3), the judge must—
(a) inform the jury that it is standard procedure for complainants’ evidence in such cases to be given by those means or use of those arrangements, and
(b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because it is given by those means or by use of those arrangements.
Plainly, the provision requires a direction to be given in terms of s 294B(7)(a). It was not in issue that this was done, both at the time the evidence was given and in the summing up.
Further, the jury must be told that no inference can be drawn against the accused as a result of the use of the facility. Such a warning is to dispel any risk the jury may reason that the fact the complainant was not in the same room as the accused (or not within sight of the accused) is in any way probative of the accused’s guilt, thereby giving the complainant’s evidence greater weight on the basis that it was adduced by the means provided for in s 294B(3). Again, there was no issue that directions were given which complied with this aspect of s 294B(7).
Section 294B(7) also requires that the jury be told that they may not give the evidence “lesser weight because it is given by those means or by use of those arrangements”. This most obviously applies to dispel any suggestion the evidence should be given less weight because the complainant did not directly face the accused in court. The impugned direction was adequate to deal with this form of reasoning made impermissible by s 294B(7).
The direction, however, also raised the relationship between the assessment of the witness’s demeanour and the means by which the evidence was given. The jury was told, in the passage above, that, “[a]ny difficulty” encountered in assessing the credibility of the complainant “by reason of the fact that the evidence was adduced … by the use of a video link, should be resolved in favour of the accused”. To similar effect, the jury was told that if they had any difficulty assessing the demeanour of a witness “by the restrictions or limitations placed upon that task because of the use of the video link”, that might give rise to a doubt as to whether the witness (here synonymous with the evidence) could be relied on.
The credibility of the complainant was in contest. The jury was directed that, in the event that there was difficulty assessing the complainant’s credibility because the evidence had been given by way of AVL, the difficulty should be “resolved in favour of the accused” so they were entitled to, in the words of the prohibition in s 294B(7)(b), “give the evidence … lesser weight because it [was] given by those means”. The subsequent direction that the means by which the evidence was given might lead to a doubt as to whether the evidence could be relied on was to similar effect. The directions breached the prohibition in s 294B(7).
His Honour’s reasons for refusing to order the discharge of the jury were premised on his view that the directions were not inconsistent with s 294B(7). Given my view that his Honour was wrong in that regard, it followed that in exercising his discretion to refuse the application his Honour acted on wrong principle and thereby erred: House v The King (1936) 55 CLR 499; [1936] HCA 40. The appellant’s sole ground of appeal was, on this basis, made out.
“It seems to me at this point in the proceedings against the accused that appropriate directions and warnings to the jury could cure much of the asserted prejudice that would flow from the use of audiovisual means of adducing the evidence of the two witnesses. For example, the jury would be told, if it were necessary to do so, that as the credit of the witnesses was a crucial issue in the resolution of the charges against the accused, any difficulty they might encounter in assessing the credibility of the witness by reason of the fact that the evidence was adduced before them by the use of a video link should be resolved in favour of the accused. So if they thought that demeanour might be important and they were having difficulty in properly assessing the demeanour of the witness by the restrictions or limitations placed upon that task because of the use of the video link, that might be a matter that would give rise to a doubt about whether they could rely upon the witness and, therefore, may give rise to a doubt that the prosecution had proved its case.”
Importantly, in coming to this view, Howie J was not bound by the strictures of s 294B(7) of the Criminal Procedure Act.
The direction proposed by Howie J does, however, highlight a problem which the trial judge in the present matter was anxious to address. How does a jury evaluate the evidence of a witness who gives evidence from outside the courtroom and, more particularly, what, if anything, should the jury be told?
“66 …The use of AVL for the purposes 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 a particular case: see Kirby v Centro Properties Ltd (2012) 288 ALR 601; [2012] FCA 60 at [11] (Gordon J); Australian Securities and Investments Commission v Rich (2003) 49 ACSR 578; [2004] NSWSC 467 at [16] (Austin J).
67 While it has sometimes been acknowledged that the question whether the credibility of the witness is in issue might be relevant to the decision to use AVL: see Kirby v Centro Properties Ltd at [10]; Australian Securities and Investments Commission v Rich at [27]–[28] and the cases cited therein; R v Qaumi *(*No 9) [2016] NSWSC 171 at [9] (Hamill J); and Hughes v Whittens Group Pty Ltd [2017] NSWSC 329 at [21] (Button J), there are numerous decisions where it has been held that the demeanour of a witness could be adequately assessed by AVL: see Australian Securities and Investments Commission v Rich at [24]-[26]; R v Wilkie (2005) 193 FLR 291; [2005] NSWSC 794 at [31]-[32] (Howie J); R v Lodhi (2006) 163 A Crim R 488; [2006] NSWSC 587 at [65] (Whealy J) and the cases cited therein.” (emphasis added)
Reinforcing this view, some judges have expressed the view that the quality of modern platforms and the size of video screens actually enhances the ability to observe witnesses. In Capic v Ford Motor Co**mpany of Australia Ltd [2020] FCA 486 (at [19]), Perram J stated that his “perception of the witness' facial expressions is much greater than it is in Court”. Similar observations were made by Lee J in Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 (at [33]).
There is, however, something of a trend towards re-evaluating a confidence in the functional equivalence between in person and AVL evidence. In R v Early *(*No 4) [2023] NSWSC 505, Yehia J made reference to a number of authorities and observed (at [34]) that the increased use of AVL evidence that came about as a result of the COVID-19 pandemic was “a dramatic response to an unprecedented situation” but that it remained the case that it was not the equal of in person testimony. Her Honour cautioned that considerations such as cost efficiency and the desire to reduce inconvenience would not necessarily outweigh the potential for the giving of evidence by AVL to operate unfairly to the opposing party.
Interestingly, reflecting what may be a growing scepticism, Lee J, subsequent to his remarks in Australian Securities and Investments Commission v GetSwift, with the benefit of further experience and “subsequent reflection”, reviewed his position in Palmer v McGowan *(*No 2) [2022] FCA 32; (2022) 398 ALR 524, stating (at [46]-[47]):
“46 Related to this point, is that increasingly I have felt a nagging disquiet that I may perhaps be missing something in assessing the evidence of a witness by reference to the tone of voice or non-verbal signals. As time has gone on, it is [sic] has become more evident to me that in an audio-visual feed, minor differences in emphasis or tone can be more difficult to appreciate and assess.
47 It has, of course, become common for scepticism to be expressed about the advantage that trial judges enjoy in seeing a witness give evidence. But despite these well-founded criticisms and the fact that by video a judge can observe the manner of giving evidence remotely, based on my experience in recent times, I consider I have a better prospect of understanding the subtleties and nuances of the sort of evidence to be given in the present case, if it is given in person…”
“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].”
“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 Limited [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.”
In R v Abdaly; R v Hosseinishoja *(*No 4) [2022] NSWSC 1529, Hamill J noted the tension between what was said in KN at [66]-[68] and in Antov v Bokan (**No 2), and expressed his preference for the latter. See also the helpful discussion in Early (No 4), by Yehia J where her Honour, after referring to various authorities including KN, Antov v Bokan (No 2) and Rooney v AGL Energy Limited *(*No 2), stressed that the balance of cost and convenience against the advantages of in person testimony will operate differently in the criminal context.
The trend appears to be towards an acknowledgement that the comfort that courts have developed with the use of AVL as a result of improvements in quality, and the corresponding increase in the frequency with which it is used, should not be confused with such evidence being the equivalent of in-person testimony.
While the following discussion does not purport to represent a complete survey of the available research in this area, it is sufficient to highlight the relevant issues. While the research is not all one way, the dominant view is that evidence given by AVL, even with advances in technology, does not overcome the advantages of in person testimony. It has, in this regard, been observed that AVL only provides an “approximation of face-to-face interaction”. [1]
Studies have, perhaps unsurprisingly, found that the quality of the AVL facility will impact a factfinder’s ability to effectively assess the evidence of a witness given by those means. In the court context, and particularly where CCTV is used for complainants in trials such as the present, the quality of AVL has improved dramatically. Despite these improvements, technical issues still occur at times, including problems with connection stability, audio quality and devices. [2] A relatively recent example can be found in R v Macdonald*; R v Edward Obeid; R v Moses Obeid* *(*No 11) [2020] NSWSC 382. While perhaps at the extreme end, an empirical study testing the impact of low audio quality on a factfinder’s evaluation of witness evidence revealed that audio quality influences perceptions of witnesses and their evidence. Across three experiments, participants listened to audio clips of witnesses describing an event, one presented in high-quality audio, and one presented in low-quality audio. When participants heard witnesses present evidence in low-quality audio, they rated the witness as less credible, reliable and trustworthy, had poorer memory for key facts presented by the witness and gave less weight to witness evidence in final judgments. [3] Whether these results translate, with a corresponding attenuation of effect, to better quality but imperfect AVL evidence, is not clear.
Even where there is no issue with the quality of the AVL facility, however, research suggests that evidence given by AVL is nonetheless not the equal of in-person testimony. There is, for example, evidence that witnesses may behave differently when giving evidence via AVL than they would in the courtroom. [4]
The matters referred to above do not of themselves suggest that, even where the quality of the AVL facility is good, the disadvantage is to the opposing, rather than the calling party. Indeed, some scholars have argued that the use of AVL may cause evidence to be less believable for reasons other than an apparent deficiency in quality, by obscuring or distorting non-verbal cues, leading to a weaker standard of communication (I infer with the tribunal of fact). [5]
In this vein it has been said: [6]
“Witnesses who pause before answering a question due to connectivity issues not obvious to others could be construed as hesitant or uncertain, and hence less credible. Those who fidget excessively due to the unfamiliarity, discomfort, or boredom of sitting for hours in front of their computer screens may be perceived as less credible. Those who would gain reassurance on the stand from seeing supportive friends or family members in the physical courtroom will be deprived of that on Zoom and, as a consequence, may be less confident or forthcoming. Witnesses who see themselves in a window on the interface as they testify may be distracted, increasing their cognitive load, which in turn may adversely affect their mood and be reflected in their demeanor.” (citations omitted)
Other scholars have similarly suggested that users appearing via AVL may have greater difficulty engaging in the proceedings and may feel alienated, stressed or fatigued. [7]
On the other side of the ledger, it has been suggested that the factfinder may not have much, if any, sense of a witness’ posture or bodily movements, other than them shifting in their seats, depriving them of an important visual cue used to assess credibility, [8] presumably reducing the scrutiny able to be given to the evidence.
It may be that witnesses are differently impacted by their evidence being given via AVL. In the first televised US Presidential debate, held on 26 September 1960 between Richard Nixon and John F Kennedy, the new medium of television famously influenced viewers’ perceptions of the two candidates, both detrimentally, in the case of Nixon, and beneficially (or at least less detrimentally), for Kennedy. The quality of AVL facilities has improved dramatically since the grainy black and white footage of that debate, however it is worth noting that while the quality was the same for both candidates, they were impacted, or were perceived to be impacted, differently. As the two candidates shared the same room, the debate itself was unaffected by the medium. Rather, it was the viewers’ perceptions of the debate, mediated through their television screens, which were affected.
Support for the view that different witnesses might be differently impacted can be found in the work of Michael Roth. Roth refers to the distorting effect of the use of AVL, stating: [9]
“Nobody claims that ‘[v]ideo images are… adequate substitutes of live interactions.’ Like television, video does not accurately simulate human perceptions. Both mediums can exaggerate certain personal traits that are commonly used to evaluate a witness's demeanor such as blemishes, shadows, and hair growth. Filming can add weight or emphasize scars. ‘When a person is viewed in the unnatural conditions imposed on him by [a video medium], many of [the] usual clues to his character are [altered].’” (citations omitted)
“A close-up shot concentrates the viewer's attention on facial details that might otherwise be overlooked. The medium shot allows the viewer to see both facial expressions and physical gestures. The long shot allows gestures to be more dominant, but might divert a viewer's attention from facial details.
Most studies have indicated that when one constant shot size is used, no detectable difference occurs between how jurors perceive testimony live versus on tape. However, other studies have indicated that when a witness is noticeably strong or weak, shot size can be used to enhance or diminish that trait. The true impact of shot size may only be apparent when viewed in the context of the whole trial or other shots. For example, the effect of a close-up shot of a witness may only be fully realized when juxtaposed with viewing in-person testimony or when a preceding shot is a long shot.” (citations omitted)
“Although AVL allows for witnesses to be cross-examined and to participate actively in the proceedings, it has been argued that the visceral responses that are often experienced in face-to-face encounters can be lost when witnesses appear via video link rather than in person. The fact that the parties on the computer screen are only two-dimensional means that it is possible for some non-verbal cues to be present, yet remain unnoticed. In addition, video technology may actually encourage (consciously or otherwise) a witness to behave in a disinhibited manner, which may manifest itself through fidgeting or averting one’s gaze from the screen. Maintaining eye contact throughout the proceeding, while desirable and often requested, can be difficult. Western cultures view eye contact as a sign of respect, friendliness and attentiveness to the speaker. Those who do not make eye contact are perceived to be less credible, hostile, submissive and less adept intellectually.” (citations omitted)
It is convenient to return to the direction given by the trial judge in this case, which presents a difficulty beyond inconsistency with s 294B(7). A problem with the direction given by the trial judge in this case, quite apart from it being contrary to s 294B(7), was that it was unlikely to operate in the way in which it was intended. The direction assumed that the jurors would be conscious of, and able to assess, the impact of the use of AVL on their ability to assess the demeanour of the complainant. The reality is that the use of AVL may (and perhaps was likely to) have impacted the jury’s assessment of the demeanour of the complainant, but in a manner of which they were unaware, unable to articulate, and with the result that they were unlikely to have been able to apply the direction to the evidence.
The direction also assumed that the jurors were capable of isolating the demeanour of the complainant from the content of the evidence actually given as a matter relevant to credit. I would not assume a jury could readily separate these aspects of the testimony. A witness may, for example, be subject to an attack on credit based on a prior inconsistent statement. The witness will ordinarily provide a verbal response. The evaluation of that response will be a combination of what was said and how it was said. The direction ran the risk that the jury, unable to disentangle the two aspects, would unfairly reject the evidence of the complainant.
The difficulties I refer to above illustrate a risk that the jury, attempting to follow the direction they were given, would too readily ascribe difficulties encountered in determining whether the evidence of the complainant should be accepted to the mysteries of demeanour. In doing so, there was a risk that the significance of demeanour would be overvalued. It is helpful to recall, in this context, the admonition in Fox v Percy that “an ounce of intrinsic merit or demerit … is worth pounds of demeanour”. [12] The force of that statement was underscored by the observation in Fennell v The Queen that “well-known scientific research … has revealed the difficulties and inaccuracies involved in assessing credibility and reliability”. [13]
What then, can sensibly be said? From the review undertaken above, even where high quality AVL facilities are available, the process of giving evidence is not the equal of in-person testimony. Having regard to the observations of judges and academics, it appears that the ability of a cross-examiner to test the evidence of a witness may be impeded by the use of AVL. The cross-examiner may lack the comfort that they would experience in an in-person encounter. Relatedly, they may have difficulty picking up non-verbal cues, in turn impacting the flow of the questioning to the detriment of the questioner. The jury’s ability to evaluate the demeanour of a witness who gives evidence by AVL is likely to be compromised to some degree. Additionally, the gravity of the occasion may not bear upon the witness in the same way as it would were the witness in the same room under the direct physical supervision of the judge. This last consideration is, it should be said, likely to be ameliorated in the context of a complainant giving evidence by CCTV pursuant to s 294B(3) by virtue of the fact that, unlike other AVL witnesses, the witness will be in the same building, in effect giving evidence from an extension of the courtroom.
“You will have noticed that the evidence of [the witness] was given by means of CCTV. It is standard procedure for complainants to give evidence by CCTV in cases such as this.
Because it is a standard procedure, it is necessary that I warn you that you cannot draw any inference adverse to the accused because the evidence was given by these means. You cannot give the evidence any greater or lesser weight because it was given by these means. That is a direction which you are bound to follow.
Of course, irrespective of the cause, if you had difficulty evaluating the evidence of the witness, that is a matter that may be taken into account by you in assessing whether the Crown has proved its case against the accused.
In this case it was submitted to you that there was a difficulty assessing the evidence because [the image was blurry/ there was a delay/ for some other reason]. But as I have said, you cannot give the evidence less weight simply because it was given by means of CCTV. You must accept it was properly given by those means and assess it as you would any other evidence, taking into account its strengths and weaknesses, bearing in mind any weaknesses will bear on the question of whether the prosecution has proved its case.”
Of the other witnesses who also gave evidence by AVL, two were civilian witnesses and two were “government agency witnesses” as defined in s 3 of the AVL Act. Section 5B of the AVL Act applied to the former and s 5BAA applied to the latter.
With respect to the civilian witnesses, a direction that the witness give evidence in the proposed manner was available pursuant to s 5B(1) unless one of the circumstances in s 5B(2) of the AVL Act existed, including that the “direction would be unfair to any party to the proceeding”. With respect to the government agency witnesses, s 5BAA(1) required the witnesses to give their evidence by AVL or audio link subject to a contrary direction given by the judge and the necessary facilities being available (s 5BAA(2)). There was no suggestion in the present case that a direction be given for the in person attendance of either witness, such a direction being available only if both “the evidence to be given is likely to be contentious” and “it is in the interests of the administration of justice for the government agency witness to give evidence by appearing physically before the court”: s 5BAA(4).
That the witnesses were called pursuant to s 5B(1) and s 5BAA(1) respectively did not foreclose the trial judge from providing the jury with a direction as to how to evaluate their evidence as a result of it being given by AVL. A consideration of whether a direction that a witness give evidence by such means would be unfair within s 5B(2) will include the availability of directions designed to counter any such unfairness: R v Youseff *(*No 3) [2024] NSWSC 1261 (at [41]); Wilkie (at [72]). The ability to frame such a direction may, however, be impacted by the issues I have discussed above.
In the present matter, however, there was no suggestion that any prejudice to the respondent was occasioned as a result of the means by which these witnesses gave their evidence. That was not surprising given that the evidence, as observed above, was uncontentious. The impugned direction was inapposite insofar as it applied to the civilian and government agency witnesses. It does not follow that it was in error. It was rather, with respect to these witnesses, simply a direction based on a contingency that could not be expected to eventuate. This does not, of course, impact my view that his Honour’s refusal to discharge the jury was based on error as a result of the application of the impugned direction to the complainant.
5F Appeal against interlocutory judgment or order
…
(5) The Court of Criminal Appeal-
(a) may affirm or vacate the judgment, order, decision or ruling appealed against, and
(b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against.
12 Supplemental powers of the court
…
(2) The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.
At the time of the discharge application, the trial, including the summing up to the jury, had been completed and the jury was deliberating. For the reasons given above, his Honour’s reasons for refusing the discharge application were infected by error. It did not follow that the decision was necessarily wrong. The criterion for the exercise of the discretion to discharge the jury is the maintenance of the fairness of the trial and the test is one of necessity: Crofts v The Queen (1996) 186 CLR 427 at 440; [1996] HCA 22. Whether it is necessary to discharge a jury is to be determined having regard to whether the trial, if continued, will be unfair. Thus, the question of necessity will be determined in the light of the powers that a court can exercise to minimise or eliminate the unfairness: Jago v the District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46. See also Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486 at [126], citing Khazaal v R [2011] NSWCCA 129, Crofts v The Queen and Maric v The Queen (1978) 52 ALJR 631, where a list of relevant considerations, including “the likely effectiveness of a judicial direction” was set out.
In the present case, I was of the view that this Court should not order the discharge of the jury. It remained open for his Honour to reconsider the application in the light of the availability of a further direction withdrawing the impugned direction. The appellant, ultimately, did not oppose this course. It was opposed by the respondent on the basis that a withdrawal of the direction would create irredeemable prejudice to him. I was of the view that the merits of that submission would be best assessed by the trial judge, having regard to the stage of the trial, his Honour’s proposed redirection and his assessment of the likely effect of that redirection. The trial judge was in the best position to balance those considerations having presided over the trial.
For these reasons, I was of the view that the appropriate order was that the matter be remitted to the District Court for the appellant’s discharge application to be determined according to law.
McNAUGHTON J: I agree with paragraphs [2] – [25] and [65] – [69] of Dhanji J’s judgment which set out the background and reasons for me joining in the orders of the Court. Given the limited nature of the argument before the Court in this case, however, I prefer not to express any view in relation to the balance of his Honour’s judgment.
**********
Kyle Denning, ‘Fully Online Civil Proceedings: Risks, Rewards and the Rule of Law’ (2024) 98 Australian Law Journal 210, 219.
Michael Legg and Anthony Song, ‘The Courts, the Remote Hearing and the Pandemic: from Action to Reflection’ (2021) 44(1) UNSW Law Journal 126, 148.
Elena Bild et al, ‘Sound and Credibility in the Virtual Court: Low Audio Quality Leads to Less Favorable Evaluations of Witnesses and Lower Weighting of Evidence’ (2021) 45(5) Law and Human Behavior 481.
Susan Bandes and Neal Feigenson, ‘Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom’ (2020) 68(5) Buffalo Law Review 1275, 1296-1304; Denning (n 1) 219.
See, eg, Legg and Song (n 2) 137, citing Anne Bowen Poulin, ‘Criminal Justice and Video Conferencing Technology: The Remote Defendant’ (2004) 78(4) Tulane Law Review 1089, 1110 and David Tait and Vincent Tay, 'Virtual Court Study: Report of a Pilot Test 2018' (Research Report, Western Sydney University, 16 October 2019) 30.
Bandes and Feigenson (n 4) 1296-7.
Legg and Song (n 2) 137.
Bandes and Feigenson (n 4) 1299-1300, citing Beatrice de Gelder, ‘Towards the Neurobiology of Emotional Body Language’ (2006) 7 Nature Reviews Neuroscience 242 and Dacher Keltner and Jennifer Lerner, ‘Emotion’ in Susan Fiske, Gilbert Daniel and Lindzey Gardner (eds) Handbook of social psychology (John Wiley & Sons Inc, 5th ed, 2010) 317, 321-3.
Michael Roth, ‘Laissez-faire Videoconferencing: Remote Witness Testimony and Adversarial Truth’ (2000) 48 UCLA Law Review 185, 198.
Ibid 203.
Russell Smith, Rebecca Savage and Catherine Emami, ‘Audiovisual link technologies in Australian criminal courts: Practical and legal considerations’ (Research Report No 22, Australian Institute of Criminology, 2021) 15.
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30] (per Gleeson CJ, Gummow and Kirby JJ), quoting Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140 at 152 (per Atkin LJ).
Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219 at [81] (per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ). See also The King v ZT [2025] HCA 9 at [75] (per Gordon, Edelman and Steward JJ); Peter McClellan, ‘Who is telling the truth? Psychology, common sense and the law’ (2006) 80 Australian Law Journal 655; David Ipp, ‘Problems with fact-finding’ (2006) 80 Australian Law Journal 667; Blake McKimmie, Barbara Masser and Renata Bongiorno, ‘Looking Shifty but Telling the Truth: The Effect of Witness Demeanour on Mock Jurors’ Perceptions’ (2014) 21(2) Psychiatry, Psychology and Law 297, 298, 307; Robert Fisher, ‘The Demeanour Fallacy’ (2014) 4 New Zealand Law Review 575, 582, cited in Marilyn Krawitz and Justine Howard, ‘Should Australian courts give more witnesses the right to Skype?’ (2015) 25 Journal of Judicial Administration 44, 61.
[14] “an interlocutory order or judgment” amended to “an interlocutory judgment or order” [62] “that it is in the interests of …” amended to “it is in the interests of …”
minor corrections to [11], [12], [14], [18], [23], [30], [32], [35], [55], [61], [67]
R
Walker [2025] NSWCCA 62
(2019) 101 NSWLR 142
(1996) 186 CLR 427
(2019) 93 ALJR 1219
(2003) 214 CLR 118
(1936) 55 CLR 499
(1989) 168 CLR 23
(2017) 95 NSWLR 767
(1978) 52 ALJR 631
(2022) 398 ALR 524
(2012) 288 ALR 601
(2005) 193 FLR 291
(2009) 181 FCR 152
Before leaving this ground and providing reasons for ordering that the matter be remitted, it is convenient to say something more about the direction given by his Honour and its appropriateness in the context of the case.
The direction given was based on the judgment of Howie J in Wilkie. That judgment was made in the context of opposition by the accused to an application by the Crown under the AVL Act*.* The accused asserted that they would be prejudiced by the absence of the witnesses from the courtroom. His Honour said (at [72]):
The effect, ultimately, of the above impacts on the tribunal of fact is likely to be difficult to evaluate. To the extent that these effects are present but not able to be identified, a direction alerting the jury to them in the context of a witness to which s 294B(3) applies is likely to be contrary to s 294B(7).
An inability to identify the impact of the use of AVL is particularly acute in the context of directions with respect to the assessment of demeanour. It can be accepted that the jury’s capacity to assess demeanour is likely to be detrimentally affected. Having regard to the discussion above however, there is no basis to conclude that any deficit in the ability to assess a witness, when compared to the scrutiny that would be available with an in-person examination, will necessarily be to the advantage of the witness. The witness might be detrimentally affected. To the extent this is so in the context of a complainant in a sexual assault trial, it will impact the prosecution’s ability to prove the charge beyond reasonable doubt. To the extent that a witness may be advantaged, however, this does create a problem having regard to the onus and burden of proof. This should not be overstated, having regard to what I have said above as to giving demeanour too much weight.
Section 294B(7) requires that a jury be warned not to give the evidence of a witness to whom it applies any greater or lesser weight because it was given by the particular means prescribed by s 294B(3). In the absence of an ability to identify a detriment in a particular case, the reality is little can be usefully said that might meaningfully assist the jury. In these circumstances, any direction requiring the jury to take into account the means by which the evidence was given is likely to contravene s 294B(7). There seems to me to be, in these circumstances, no real alternative to an anodyne direction, given the terms of the section, warning the jury against drawing any inference adverse to the accused based on the use of the mode by which the evidence was given, or, for that reason, to give the evidence greater or lesser weight.
There is a further reason why, in the ordinary case, no more should be said than what is explicitly required by s 294B(7). That is to do with the entitlement granted to particular witnesses to give evidence by the means described. To direct a jury that the medium used may have impacted the evidence in a way that impedes the jury’s ability to assess the evidence would be to convert that entitlement to give evidence by such means to a qualified entitlement.
The situation may be different where the impact of the mode by which the complainant gives evidence pursuant to s 294B(3) is capable of being identified. It may be likely that such cases will be rare. In those cases, a distinction can be drawn between a direction to the jury as to the weight that evidence might be given because it was given by particular means, and a direction as to the weight that evidence might be given because of a particular quality of that evidence (albeit that quality was a result of the means by which it was given).
To take an extreme (and no doubt unrealistic) example unconnected with the present case, evidence may, within s 294B(3), be given by audio only. That evidence might be subject to delay or distortion. In such a situation, the ability for a jury to assess the evidence based on how it was given is likely to be severely impacted. The prohibition in s 294B(7) is against drawing inferences adverse to the accused, or giving the evidence any “greater or lesser weight because it is given by” means within s 294B(3). That does not change the nature of the evidence ultimately given. It cannot convert poor evidence into clear evidence. If it is suggested that there is some weakness in the Crown case as a result of the manner in which evidence was given, it may be open, in an appropriate case, to point out the potential difficulties in the evidence. An available direction would be: