R v Warwick

Supreme Court of NSW|2018-10-04|Before: Garling J

Notice of Motion

This is an application by the Crown, made by Notice of Motion filed in Court on 13 September 2018, for an order that: "Pursuant to s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998, an order be made that Robert Barnes give evidence by audio-visual link from a place in Victoria".
The application is opposed by the Accused.

Legislation

Section 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 ("AVL Act") empowers a court, either on its own motion, or on the application of a party to a proceeding, to give a direction that a person, including a witness, give evidence by audio-visual link ("AVL") from any place within or outside New South Wales (including a place outside Australia) other than the courtroom in which the Court is sitting.
Section s 5B(2) of the AVL Act limits the power of the Court to make such a direction. It is in the following form: "(2) The court must not make such a direction if: (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or (c) the court is satisfied that the direction would be unfair to any party to the proceeding, or (d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission."

Submissions and Evidence

The Crown, in its submissions, relies upon the fact that the psychological and psychiatric health of Mr Barnes is such that he is unable to give evidence by travelling from the outer suburbs of Melbourne, where he lives, to this Court in Sydney to give evidence, although his psychological or psychiatric state is such that he would be able to give evidence by AVL.
In evidence before the Court is material from both the general practitioner of Mr Barnes and a consultant psychiatrist, Dr Dimuthu Hettiarachchi, by whom he is being treated. It is apparent from the general practitioner's material that whilst Mr Barnes has a degree of physical fitness which enables him to participate in long distance running, he nevertheless has significant psychiatric conditions which have subsisted for a lengthy period.
Consultation notes of 20 April 2017 of the Primary Health Care Medical Centre in the suburb where Mr Barnes lives record considerable stress and anxiety associated with depression, insomnia, fluctuation of mood and other similar symptoms. At that consultation, the general practitioner provided counselling to Mr Barnes, but referred him for expert psychiatric assistance.
Further consultations in 2017 with the general practitioner indicated ongoing attendance by Mr Barnes at his consultant psychiatrist and ongoing treatment with medication designed to address the symptoms identified in [7], which have continued.
Clinical notes tendered of consultations with Dr Hettiarachchi indicate that, in the period between May 2018 and September 2018, Mr Barnes has presented to her rooms seeking treatment for symptoms of worsening anxiety and depression, which are associated with being a witness in the current proceedings. He has received counselling and has been prescribed medication to enable him to cope with the stress confronting him.
The evidence discloses that his most recent consultation with Dr Hettiarachchi was on 12 September 2018, when counselling continued, as did the prescription of medication. In a report written on that day, Dr Hettiarachchi said: "This is to confirm that I have reviewed Mr Barnes today. He continues to present with ongoing anxiety characterised by poor sleep, headaches, raising thoughts, feeling overwhelmed, persistent worry. Mr Barnes remains anxious about attending to court. In my opinion, it is likely that his mental state can decline significantly if he attends court. He may well not be able to continue giving evidence under these circumstances. However he may cope adequately if he can give evidence through video link (sic)."
In evidence before this Court on this Motion is the transcript of evidence taken on Friday, 25 May 2018, at which hearing Mr Barnes gave evidence about his state of health, including his psychological and psychiatric health, as did Dr Hettiarachchi. Pursuant to an interlocutory order made by the Court on 23 May 2018 under s 5B(1) of the AVL Act, both Mr Barnes and Dr Hettiarachchi gave their evidence via AVL: see R v Warwick (No.27) [2018] NSWSC 753.
It is clear that Dr Hettiarachchi's opinion is based upon a series of consultations with Mr Barnes across a period of several years. She has noted that in obtaining Mr Barnes' psychiatric history, he said that he had had significant negative and traumatic experience in the past in attending in Court in 2013 and 2014 and, as a consequence of that and his general condition, she was of the opinion it would be significantly detrimental to his mental state to attend Court in person. Dr Hettiarachchi said that she thought that if Mr Barnes were permitted to give his evidence via AVL, this would remove the degree of anxiety and level of distress which he felt. She thought it was more likely that Mr Barnes would cope better and experience less stress in circumstances where he felt more in control over his environment.
If Mr Barnes were required to physically attend Court in Sydney for the period during which he would be required, that would mean that Mr Barnes was away from his home and such support mechanisms as exist, including the capacity to attend upon his general practitioner or his psychiatrist for ongoing counselling or assistance if he had recurrent symptoms of his psychiatric condition, or if his psychiatric condition was aggravated in some way. However, if he gives evidence by AVL, from a location accessible to his home, those support mechanisms would remain in place.
What is of further importance is Dr Hettiarachchi's view, which she expressed in May 2018, that the extent of Mr Barnes' psychiatric and psychological condition was such that, if he were required to attend Court in person, it may significantly detrimentally affect the quality of his evidence in the proceedings.
Mr Barnes gave evidence at that hearing which supported the factual bases for the conclusions expressed by Dr Hettiarachchi.
In cross-examination, the extent of Mr Barnes' anxiety and depression was tested. He was asked this question by the lawyer for the Accused and gave this answer: "Q. So that's the primary reason you would prefer not to be in the court and prefer video link? A. The primary reason is because, regardless of what happens in the Court, I'm going to be subjected to massive media attention and I find that highly stressful and I don't think that's helpful to the Court. I find that, as I said, I get stressed getting up in the morning having to get up. If I have to go and do something for my wife, I worry about it. You know, the question is, you know, you can get me up there, but if I have a breakdown, you'll get nothing. So that's the question you need to answer, not me."
He was further asked these questions in cross-examination and gave these answers with respect to providing reports to police officers: "Q. And you provided reports that were updates of your position in relation to these numerous pieces of forensic work you have done, is that right? A. I don't think so. Q. No? A. I think they were questions on somewhat related issues. Q. You were happy to do that? A. Yes, I was happy to do that in my own environment, yes. Q. And you felt you had capacity to do it and provide - A. In my own environment, that's correct, but you wouldn't have got me going to Sydney to do it or anywhere else. Q. So you don't lack capacity, do you, it is the question of where you are comfortable working? A. I suppose that's one way of looking at it, yes."
Then further: "Q. So coming to Court, is it the presence of the press also that's the problem for you? A. It's - it's the whole environment. I now find it extremely stressful. I find it stressful being here now; of course I can probably cope because I feel I am remote and that gives me, if you like, an insulation. Q. So you can understand that sometimes special arrangements can be made in a court to have concern for people with particular problems; do you understand that? A. I understand that. That's what you're doing now."

Relevance

The Crown submits that Mr Barnes' evidence is of relevance and is of importance to its case. I do not understand the lawyers for the Accused to challenge that fundamental proposition, although it was made perfectly plain that the lawyers for the Accused do not accept that Mr Barnes is an adequately qualified expert, that he has the expertise necessary to express the opinions which he expresses and, further, that the opinions which he expresses are not accepted in their entirety and are to be the subject of challenge. As well, the lawyers for the Accused have indicated to the Court that they propose to challenge not only these aspects of Mr Barnes' evidence, but his credibility more generally.

Discernment

The material placed before the Court on this Motion satisfies me that Mr Barnes, by reason of his psychiatric and psychological condition, would not be fit to attend the Court in Sydney in person and, even if he was able to attend, would be unlikely to be able to give evidence for the entirety of the period necessary to enable the proper challenges to be made by the Accused to his evidence on the bases which have been outlined. Mr Barnes is willing to give evidence via AVL. This attitude addresses one matter of which the Court is to be satisfied: s 5B(2)(d) AVL Act.
Having regard to the importance of his evidence, then, it seems to me, as a first step, the Crown has discharged an onus of persuading the Court that, subject to the matters to which I will come, it would be appropriate for Mr Barnes to give evidence by AVL. However, the terms of the AVL Act require me to consider, before making an order, whether such an order would be unfair to any party to the proceeding in this case - that is, whether, in effect, it would be unfair to the Accused to have Mr Barnes' evidence taken by AVL.
In their submissions the lawyers for the Accused pointed to the following matters as reasons why it would be unfair to the Accused to take Mr Barnes' evidence by AVL.
First, that there are technical issues with the quality of the AVL link which have arisen on the technical trials which have so far been undertaken, which means that the transmission of Mr Barnes' evidence by AVL is unsatisfactory. I will return to that issue in due course. Necessarily, as the Act provides in s 5B(2A), the Court is unable to make a direction of the kind sought by the Crown if the necessary facilities are unavailable.
Secondly, the Accused opposes the taking of Mr Barnes' evidence by AVL because the use of AVL lessens the effectiveness of any challenge made to a witness as to their credibility. Subsumed in this submission is the proposition that proximate observation of a witness in person in a courtroom assists a Court in the assessment of the credibility of the witness.
The question is, however, a little different, as it seems to me. The question is whether the capacity of the Court to assess the credibility of a witness giving evidence over AVL is substantially adversely affected when compared with that capacity when the witness is physically present in the courtroom.
Necessarily, a conclusion on this depends upon the adequacy of the AVL link. Assuming the link is adequate in a technical sense, I see no difficulty, in the absence of a jury - this being a trial by judge alone - in being able to assess, by closely watching an AVL link, the attitude of the witness and their demeanour, to the extent that that might be relevant to an assessment of their credit and credibility. The speed and willingness with which a witness answers a question, and the content of the answer, including, whether it is a proper response, or an evasive response, can be quite objectively assessed without the witness being physically present in the courtroom.
In coming to this conclusion, I keep in mind the Court's undoubted experience that the assessment of the credit or credibility of a witness is an exercise which depends on many more features than just an observation of the witness' demeanour. That is one, but not the only, part of such an assessment. To the extent that my assessment or capacity to make that assessment may be lessened, I am not satisfied that it would substantially lessen the overall effectiveness of the Court's making an assessment of Mr Barnes' credibility, such as would be unfair to the Accused.
The Accused further submitted that there would be significant practical difficulties for the purpose of cross-examination of Mr Barnes if he, Mr Barnes, was not physically present. Those practical difficulties include the ability to show Mr Barnes physical exhibits, and the ability to show Mr Barnes documents (including plans or photographs), any existing documentary exhibits and any other material of the kind typically shown to witnesses in the course of cross‑examination.
In particular, the lawyers for the Accused point to the fact that it is ordinarily common that a cross-examiner will want to show a document to a witness as a consequence of an answer given by a witness to a question, which may be an unexpected answer and which the cross‑examiner may wish to challenge. That is certainly a possibility which must be accepted. Whether or not it turns out to be the case is not something upon which the Court can come to any firm conclusion.
However, it seems to me that these matters would not be unfair to the Accused if there was a capacity for the witness to be shown documents at the remote location within a reasonably short period of time of the need to challenge the witness' answer. As well, where it is clear to a cross-examiner that certain documents may or else will be referred to and that becomes clear prior to the commencement of cross-examination on each day, or immediately after an adjournment during the day, as is also the common experience of the Court, there is no reason to think that those documents cannot be transmitted to the remote location in advance of the witness being cross-examined. Differently put, in the age of electronic communication by email, or else by the provision of access from the remote location to a relevant electronic database, such difficulties, as are referred to, can be, so it seems to me, overcome by the benefits of modern communication.
Whilst I accept that these matters need to be addressed and the parties need to be in a position to deal with the matter, I am not satisfied that these matters would make the direction sought by the Crown unfair to any party, including the Accused.
The Court must now turn its attention to two other matters. The Court cannot make a direction if it is satisfied that the evidence can more conveniently be given in this courtroom.
In my view, the state of health of Mr Barnes, which I have described above, as attested to by the medical evidence and his own attitude, make it plain that the evidence cannot more conveniently be given in the courtroom. On the contrary, that material suggests strongly that it would not be convenient for Mr Barnes' evidence to be given in this courtroom and that it can be more conveniently given from the suggested remote location: s 5B(2)(b) AVL Act.
Finally, the question is whether the necessary facilities are unavailable or cannot reasonably be made available. I earlier said that I would return to this subject.
The Crown has proposed that a location be identified in the Melbourne CBD from which, by means of a commercial provider, an AVL connection can be established to this Court. It proposes that such facility would have the capacity to send or receive documents and otherwise be available for electronic communication. I am informed that a trial by AVL that took place recently, was unsatisfactory. However, I am equally informed that it is likely that a better link can be established once the Court makes an order indicating the date and time for the examination to take place so that various available locations can be tested. As well, once the Court makes an order, alternative means of transmission can be examined.
As with any AVL, it is possible that interruptions to transmission and variations in the quality of transmission may occur. If those interruptions or variations in quality are such that it becomes apparent to the Court that the taking of the evidence of Mr Barnes is inadequate or else is unfair to the Accused by reason of those technical issues, then it is open to the Court to revoke the order sought by the Crown. Putting it differently, the giving of a direction or the making of an order under s 5B(1) of the AVL Act is necessarily dependent upon the availability of an ongoing provision of an adequate AVL connection.
To that extent, I am not persuaded that the necessary facilities are unavailable or cannot reasonably be made available as s 5B(2)(a) of the AVL Act requires.

Orders

As a consequence of all of these reasons, I am satisfied that the order sought by the Crown in its Motion of 13 September 2018 ought be made. I therefore make the following order: 1. Pursuant to s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998, I order that Robert Barnes is to give evidence by audio-visual link from a place in Victoria. 2. Order that the giving of evidence of Mr Barnes is not to commence before 15 October 2018. 3. Subject to any further order, the giving of evidence by Mr Barnes is not to continue past 29 October 2018.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2018

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