R v Wilkie, R v Burroughs, R v Mainprize

R v Wilkie, R v Burroughs, R v Mainprize - [2005] NSWSC 794 - NSWSC 2005 case summary — Zoe

[18]

(2)This rule shall not apply to directions which could be sought under section 25 of the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth. 5 The facts can be stated very briefly for the purposes of the present application. In effect the Crown alleges that the three accused were involved in a joint criminal enterprise the purpose of which was to deceive the auditor of FAIG's parent company, FAI Insurance Limited (FAI), Arthur Andersen, into believing that the arrangement for reinsurance involved a transfer of risk and, therefore, was a genuine reinsurance when they knew that it was not because of a guarantee that had been given by them that the reinsurer would never have to meet a claim under the contract of reinsurance. The purpose of the deception, according to the Crown, was to hide the fact that there was a significant shortfall in the reserves of the FAI group of companies. 6 The Crown case is that as part of their criminal enterprise the accused agreed to withhold from the auditors of FAI a number of documents that revealed the true arrangement between FAIG and the reinsuring company. The partner in the FAI's auditor responsible for the audit for the year ending 30 June 1998 was the witness Scrivens. The Crown alleges that the accused Mainprize and Wilkie falsely assured Scrivens, during meetings between the three in August 1998, that there was a transfer of risk under the contract so that the arrangement would qualify as reinsurance. The Crown alleges that had all the relevant documents concerning the arrangements between FAIG and the reinsurer been disclosed to Scrivens and those working under him, including the witness Lee, the auditors would never have approved the accounting treatment in relation to the reinsurance. This would have resulted in the disclosure of a $19.9 million loss to FAI for the year ended 30 June 1998 rather than the profit of $8.6 million that was recorded based upon the auditor's false understanding of the arrangement. 7 During oral submissions in support of this application the Crown conceded that Scrivens and Lee are important witnesses, if not the principal witnesses, in the prosecution case. In particular, in relation to the s 1309 charge against the accused Wilkie and Mainprize, it was conceded that without the evidence of Scrivens it would be extremely difficult to obtain a conviction. 8 Both Scrivens and Lee have expressed an unwillingness to return to Australia. It is not clear exactly why this is so but it may be that Scrivens is concerned that he would be embroiled in proceedings that have been commenced against the partners of the auditor of FAI arising from the collapse of the HIH insurance group which had taken over FAI in September 1998. The solicitor for the Crown, Ms Austin, was cross-examined about a conversation she had with Scriven's solicitor, Ms Bronk, about the refusal of her client to attend to give evidence in the trial. During cross-examination, Ms Austin said that Ms Bronk had told her that one of the reasons why Scriven's was unwilling to return to Australia was because he feared being served with civil process. It was also put to Ms Austin by counsel for Wilkie that Scrivens was concerned about criminal proceedings being commenced against him if he were to return to Australia. However, Ms Austin denied that she had any knowledge of such a possibility. Little was known about Lee's grounds for refusing to return to Australia for the trial. 9 In my view the reasons for the refusal of the two witnesses to return to Australia for the trial may be relevant to the exercise of the discretion under s 5B(1) but are not decisive to the success or otherwise of this application. I assume for present purposes that the unwillingness of a witness to enter the jurisdiction because he fears that he may be subject to civil or criminal proceedings is not a good reason for staying out of the jurisdiction. 10 There is authority that suggests that audiovisual evidence should only be allowed where good reasons exist for the failure of the witness to attend the proceedings in person: Moyette Pty Ltd v Foundation Healthcare Ltd [2003] FCA 116 at [10]; Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia (2001) 53 NSWLR 1 at [29]. There is authority the other way, however: see Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 at [25]. The different approaches by various courts to the use of audiovisual means of obtaining evidence are noted by Austin J in Australian Securities and Investments Commission (ASIC) v Rich (2004) 49 ACSR 578 at [17]-[18]. 11 I confess to having some difficulty with accepting the notion that a court should summarily refuse a party significant evidence, at least in a criminal trial, on the basis that there is no good reason for the failure of the witness to attend the proceedings but where that party lacks the means of forcing the attendance of the witness at the trial and where there is an acceptable method of placing the evidence before the court and where the court is satisfied that it would not give rise to unfairness to either party for the witness to give evidence or such unfairness that does arise can be cured. It is not infrequently the case in criminal trials that evidence is given by video-link where the witness is a child under the provisions of the Evidence (Children) Act 1997 (NSW). The Court seems to have no difficulty in ensuring that the use of this procedure does not result in an unfair trial. Nor do criminal courts in other jurisdictions generally conclude that the use of such procedures will result in an unfair trial: see generally R v Goldman (2004) 148 A Crim R 40. 12 There is nothing in s 5B(1) to indicate that some precondition should be imposed upon the operation of the section based upon there being a good reason for the witness's absence from the court room such as ill health, impecuniosity, safety, or inconvenience as there is in provisions of the Criminal Procedure Act dealing with the admissibility of depositions to which I shall later refer. Rather the section itself prescribes in s 5B(2) the matters that prevent a court from making a direction under the section. If the legislature thought that an absolute limitation should be imposed upon the operation of the section based upon a good reason for the failure of the witness to attend the proceedings, particularly where the witness is outside Australia, it would have said so. 13 In the present case there is no suggestion that the Crown is unwilling to have the witnesses attend Australia to give evidence or that it is in anyway conniving with the witnesses, for whatever purpose, to avoid the jurisdiction. To the contrary the Crown is well aware that the failure of the witnesses to give evidence puts the prosecution of the accused at risk and yet it lacks the means to force their attendance. No doubt if a credit issue arises about the evidence of these two witnesses, and I understand their credit is hotly in dispute by the accused, their failure to attend Australia will be a matter of criticism during the course of cross-examination and addresses. 14 Each of the accused opposes the application on two bases: first, that a trial for Commonwealth offences at which a witness gives evidence by way of audiovisual link would be a breach of s 80 of the Constitution and, second, that it would be unfair for the evidence to be admitted other than by the attendance of the witnesses to give viva voce evidence. The Attorney General of New South Wales has intervened in the proceedings in respect of the constitutional challenge pursuant to s 78A(1) of the Judiciary Act 1903 (Cth) and the Solicitor General appeared on his behalf.

[21]

If the provisions of the Act were inconsistent with s 80, then they would not be picked up by ss 68(1) or 79 of the Judiciary Act and hence they would not be applicable to the trial of Federal offences in this State: Brown v The Queen (1986) 160 CLR 171 per Brennan J at 200-201, per Deane J at 206, and per Dawson J at 218. 16 The accused submit that s 80 requires that every essential element of a trial on indictment is to be held in the State in which the offence was allegedly committed. The offences alleged against the accused were committed in New South Wales. By allowing the evidence of the witnesses to be given by audiovisual link from a place outside NSW, so the argument runs, an essential part of the trial of the accused will be conducted outside the State in which the offence was allegedly committed, thereby infringing the section. 17 The Crown submits that the place where the evidence is taken is irrelevant because it is not received and admitted at trial until it is seen and heard by the jury in the trial proceedings. It argues that evidence that is taken by audiovisual link from either the UK or Hong Kong but played to the jury in a courtroom in NSW is for practical purposes given in New South Wales. In this respect they rely on a number of authorities which suggest that audio visual evidence, regardless of where it is taken, is "given" when it is played to the jury: see DPP v X (unreported, 29 March 1994, Vic SC, BC9401206); Bell Group Ltd v Westpac Banking Corporation (2004) 208 ALR 491 at 501; B v Dentists Disciplinary Board [1994] 1 NZLR 95 at 104. The submissions of the Solicitor General were substantially the same in this respect. 18 The High Court has considered s 80 in respect of its guarantee of trial by jury for Federal offences as it impacts upon the practices and procedures, relating to the jury, whether those practices and procedures are based upon the common law or upon statute. Questions arising as to whether the procedure adopted at a particular trial under the laws or practices operating in a particular State was prohibited by s 80 have been determined by considering what were the essential features of a criminal trial by jury in 1900. So in Cheatle v The Queen (1993) 177 CLR 541 it was held that the requirement that the verdict of a jury be unanimous was an essential feature of such a trial because it ensures that "the representative character and the collective nature of the jury are carried forward into any ultimate verdict": at 553. The representative nature of the jury was itself an essential feature of trial by jury. Hence the conviction of the appellants by majority verdict was held to be unconstitutional. 19 However, the fact that the number of jurors was permitted under a State provision to be reduced below 12 did not result in the invalidity of the conviction because the provision was not incompatible with the right to trial by jury enshrined in s 80: Brownlee v The Queen (2001) 207 CLR 278. The joint judgment of Gleeson CJ and McHugh J stresses the fact that many of the procedures followed in a trial by jury have not remained immutable and argues for the adoption of a functional approach to considering the effect of s 80 on contemporary provisions relating to criminal jury trials: at [6]-[7]. 20 Similarly the joint judgment of Gaudron, Gummow and Hayne JJ recognises that what was necessary to meet the guarantee of trial by jury contained in s 80 has varied from the time of Federation to modern times in relation to the procedure to be adopted while the jury engages in its deliberations, see at [66]. Their Honours, however, stress that matters of degree are involved when determining whether a State provision is in conflict with s 80. So while they found that a provision enabling the number of jurors to be reduced to 10 would not infringe the section, that part of the provision permitting the jury to be reduced to 8 members might be invalidated; see at [72] - [73]. 21 This distinction between what are considered to be essential and non-essential features of a criminal trial for the purposes of determining the impact of s 80 was considered by Ipp JA in R v Ronen [2004] NSWCCA 176 as follows:

[25]

[75] As was said in the article, Stellios, "Brownlee v R: Method in the Madness" (2001) 29 FL Rev 319 (at 326): Thus, as stated by Gaudron, Gummow and Hayne JJ [in Brownlee v The Queen], the classification of essential features of the institution of trial by jury involves an appreciation of the objectives that institution advances or achieves. In other words, to perform that function in a constitutionally compatible manner, the institution must be characterised by certain essential functional attributes. History reveals the ends or purposes sought to be achieved by the institution and that its essential attributes might be achieved by different rules of practice and procedure depending on the social context. Rules which may be seen at one time to be indispensable to the achievement of the essential objectives of the institution might, at a later time, not be characterised as central to, or even compatible with, those essential objectives. [emphasis in original, footnotes omitted] 22 Although there have been occasions when the High Court and other appellate courts have considered s 80 so far as it impact upon provisions and procedures relating to the jury is concerned, they have not, so far as the research of counsel or myself disclosed, been called upon to consider the section so far as it requires that the trial occur within the State where the offence was committed or the essential ingredients of a trial other than those concerned with jury procedure. Nor was the Court referred to any authority in the Untied States concerned with this aspect of s2 of Art. III of the United States Constitution from which s 80 is derived. 23 The impact of s 80 upon trial procedures, other than those involving the jury, was considered by Hunt CJ at CL (as he then was) in DPP v Alexander (1993) 33 NSWLR 482. That was an application under ss 7v-7w of the Evidence Act 1905 (Cth) (now repealed) for the issuing of a letter of request to judicial authorities in the United States of America to take evidence from two witnesses who were residents of that country. The defendant had been committed to stand trial for Federal offences concerned with his importation into Australia of a number of yachts. It was argued on behalf of the defendant that the sections were in breach of s 80 because they permitted part of a trial for a Federal offence to take place in the absence of the jury. 24 That argument was based upon the Sixth Amendment to the United States Constitution that amplified the guarantee to trial by jury contained in Art III, s 2 and which provided relevantly that "the accused shall enjoy the right ……….to be confronted with the witnesses against him". This has been referred to as "the confrontation clause". The defendant argued that he had the right by s 80 to confront witnesses for the Crown in the presence of the jury as an essential aspect of a fair and impartial trial. 25 Hunt CJ at CL rejected the argument for a number of reasons including the fact that, even in the United States, there was no immutable rule that the accused had the right to confront witnesses and his Honour gave examples of exceptions to the right apparently given by the Sixth Amendment by the admission of dying declarations and the introduction of evidence taken at an earlier trial where the witness had since died or could not be compelled to come to court. But in any event, his Honour held that the reliance upon the Sixth Amendment was misplaced because not all of the guarantees it contains had been adopted by s 80. 26 Further, and perhaps more relevantly for the present purposes, His Honour stated at 491-492:

[29]

There was also in existence in New South Wales at the time of the Constitution a provision in s 6 of the Witnesses Examination Act 1900 which permitted evidence to be taken on commission for the purpose of a criminal trial in limited circumstances, but both the Crown and the accused had to consent to an order that such commission be granted. The same provision had previously been made in the Administration of Justice Act 1840, s 14. 27 Hunt CJ at CL concluded that the constitutional challenge to the relevant sections of the Evidence Act 1905 failed. His Honour did point out that the procedure with which he was concerned involved the taking of evidence before the trial and not the trial procedures themselves. Yet most, if not all, of the reasons given by him for rejecting the application of s 80 to the provisions there being considered are equally relevant to the procedure under scrutiny in this application. Insofar as the present challenge is based upon a supposed right of the accused to confront the Crown witnesses and to the degree that such a right would be infringed by the use of audiovisual link to obtain the evidence, for the same reasons as those given by Hunt CJ at CL, I would reject the challenge. 28 There is in any event a marked and obvious difference between evidence being produced in deposition form and evidence being produced by audiovisual means. Whatever might be said about the effect of s 80 on evidence being taken on commission and then being produced before the jury, the same considerations would not apply to evidence where the witness appears before the trial court, albeit not in person, and gives evidence in chief and is cross-examined in the same way that any other witness actually appearing in person before the jury would be examined. 29 Even had it been the case that an essential feature of a trial by jury in 1901 had been the appearance of the witness in person in the courtroom, which, as was shown in Alexander, it was not, I am far from persuaded that the taking of a witness's evidence by an audiovisual link would breach such an essential feature. As I have already indicated, the High Court has recognised that what is important in determining whether s 80 has been infringed is a question of substance and not form and involves a determination of whether the practice under scrutiny is merely a change in detail of the conduct of a jury trial or whether it "destroys [a] substantial and essential feature thereof": Brownlee at 298 quoting Brewer J in American Publishing Co v Fisher 166 US 464 at 468. 30 A similar view has been adopted in the United States in relation to an argument that the accused had the right to be physically present in the courtroom during committal proceedings rather than to appear by way of a video conferencing facility. In United States of America v Baker 45F 3d 837 (1995) the court held that the use of the facility did not preclude the accused from confronting and conducting relevant cross-examination and provided for his presence in some sense at the hearing. 31 Clearly the most significant aspect of the presence of the witness before the court is so that the evidence of the witness is given and tested in front of the jury in order that the tribunal of fact can consider that evidence as it is given and bring to bear in their assessment of it the skills that they may have acquired in the community. The demeanour of a witness is still regarded, at least in jury trials, as a not insignificant matter in assessing the reliability of the witness and jurors are routinely given directions in that regard particularly so far as cross-examination is concerned: cf State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588 and see R v Yates [2002] NSWCCA 520 at [218]. To the extent that demeanour may still be considered important, there is in my view little diminution of the jury's ability to take that matter into account in determining the reliability of the witness occasioned by the fact that the witness is not physically present in the courtroom, particularly having regard to the improvements in receiving visual and audio transmissions brought about by modern technology. 32 Indeed, the courts have on several occasions held that the demeanour of the witness could be adequately assessed where the evidence is given by video-link: Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, 11 March 1997, NSWSC, Giles CJ Comm D) Bayer AG v Minister for Health of the Commonwealth of Australia (1988) 96 FLR 50; Laporte Group Australia Ltd v Vatselias (unreported, 15 November 1991, NSWSC, Young J); B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 at 108. 33 Insofar as the accused argued that s 80 is infringed because the witnesses would not be appearing personally before the jury, I would reject the challenge. 34 It was also argued, alternatively, that s 80 is breached because the trial of the accused would not be a trial by jury in the State because a fundamental part of the trial was not occurring in the State as the witnesses were giving evidence outside the State. In order to consider that argument it is necessary to consider why the words "and every such trial shall be held in the State where the offence was committed" were included in s 80. 35 One can learn something about the intention behind the inclusion of the words from the constitutional debates. At the Melbourne session Mr Higgins suggested an amendment to insert the words "unless Parliament otherwise provides" before the words "be held in the State where" (Conv. Deb., Melb., pp. 350-4.) He described the purpose of the amendment as giving Federal Parliament: the power to declare under what circumstances and in what cases there shall be a discretion to have the trial in any other state… I propose to enable the Federal Parliament to say that in certain circumstances and on certain contingencies, and with certain restrictions and limitations, the trial may be held in some other place. I think that is simply another instance of trusting the Federal Parliament to put the matter on the best basis. 36 The amendment was rejected. Mr Wise opposed the amendment in strong terms. After noting that the primary application of such an amendment would be in situations where the criminal law of the State would be in conflict with the criminal law of the Commonwealth, he argued that the citizens of a State, if they are opposed to the Commonwealth law, should be able to exercise their practical power of "nullification" of that law by refusing to convict persons of offences against it. About the purpose of the provision he argued:

[31]

37 This exchange suggests that the words "in the State where the offence was committed" were intended to give a constitutional guarantee to an accused to have a jury determine the charge in the place where the offence occurred so that the jury could exercise its right to determine whether the accused should be convicted of such a charge arising on the facts of the particular allegation. See also Quick and Garren The Annotated Constitution of the Australian Commonwealth Legal Books 1995 at 810. 38 This seems to me to indicate that the drafters of s 80 intended to guarantee that the trial would take place where the jury were located rather than where the witnesses would give their evidence, either personally or by the means of the taking of a deposition in advance of the trial. Of course in 1901 there may have been no conception of a witness giving evidence from some place other than where the jury was situated. But it was at least theoretically possible at that time for a trial to take place without the presence of any witnesses because of the use of depositions. 39 In any event, as the joint judgment of Gaudron, Gummow and Hayne JJ in Brownlee makes clear, whether the procedure to be adopted falls foul of s 80 may be a matter of degree. The fact that only two witnesses are not personally giving evidence before the jury does not, in my opinion, deprive the accused of the right to a trial in the State where the offence was committed in circumstances where all other witnesses will appear in the courtroom and where the judge, the prosecutor, the accused and the jury are present. Even if, as Mr Hammerschlag SC suggested, the defence team for Mr Wilkie, or some of them, were present in the place where the witness is situated, that would not mean that the proceedings were not taking place in the State. There could be no doubt that a trial would be taking place in the State even if the trial proceeded in the absence of the accused because he had fled the jurisdiction. 40 In my opinion the trial is taking place where the evidence of the witness is received by the court, including the jury, and not where the witness is located at the time of giving evidence. I would have come to this conclusion even if uninstructed by other authority but as I have indicated such a finding is consistent with the views expressed by other courts, although construing different provisions, where it has been stated the use of an audiovisual link is for all practical purposes the same as the witness appearing in court: see generally Bell Group Ltd 208 ALR at [34]-[40]. 41 It was argued that the absence of the witness deprives the court of its traditional ability to coax or cajole the unwilling witness even to the extent of using of the powers of contempt if the witness refused to give evidence or to answer particular questions. Even if this is so, the diminution of the court's powers is relatively minor particularly in light of s 5C of the Act which is as follows:

[39]

Unfairness to the accused 46 The question then arises as to whether the court should accede to the application. The Court has a general discretion to make a direction under s 5B(1). However, it must not make a direction where any of the matters set out in s 5B(2) are present. Because the witnesses in the present case are outside Australia and, therefore, the direction is in relation to an audiovisual link from outside Australia, s 5B(3) does not apply. 47 There does not seem to be any issue that the only matter referred to in s 5B(2) which arises is that in s 5B(2)(c): that the court must not make a direction if it is satisfied that the direction would be unfair to the party. 48 I note that s 5B(2)(b) requires the court to refrain from making a direction "if 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". There is no doubt in the present case that the evidence could more conveniently be given in the courtroom, if the convenience of the court and the accused are the focus of attention. It would presumably not be more convenient for the witnesses, even if they were prepared to make the journey to Australia. The provision seems to me to be concerned with convenience generally. But in a case where the witnesses cannot, or will not, come to Australia and the Crown has no means of forcing them to do so, it does not seem to me that s 5B(2)(b) has any application. There are no other alternative means available to obtain the evidence. The accused have objected to the evidence being taken on commission as the Crown initially intended. It does not seem to me, therefore, that there is any choice based upon convenience. 49 In this regard the case is distinguishable from ASIC v Rich above, where Austin J was considering a choice between alternative arrangements, being an audiovisual link to the witnesses in London or viva voce evidence before the trial judge and counsel in London. As this is a trial by jury, the second alternative is not available in this case. Further, in ASIC v Rich two of the parties were objecting to the audiovisual link but did not resist personal attendance in London provided that their costs and expenses were met. They were not, as is the case here, trying to prevent the evidence being obtained even though the witnesses were unwilling to attend court in Australia. This distinction is important when consideration is given to the judgment of Austin J in determining the present application. 50 For example, the following passage from ASIC v Rich has been particularly relied upon by the accused as suggesting that the present application should not be granted:

[41]

As I have indicated, the Court in the present case has no choice as between the means of obtaining the evidence. The only choice is whether the direction is made for the evidence to be given by audiovisual means or the evidence is unavailable to the Crown. 51 The Court of Criminal Appeal considered the issue of unfairness to an accused person by the use of audiovisual link in R v Ngo (2003) 57 NSWLR 55. That was a case where the accused stood trial for murder. The Crown made an application for a direction that the evidence of two witnesses be given by audiovisual link under s 5B(1) of the Act because of fears that the witnesses held such that they would not give evidence in the courtroom if they were required to do so. The application was granted. On an appeal against his conviction the appellant argued that the direction ought not to have been made because it resulted in an unfair trial. 52 It is important to note that in that case the particular aspect of unfairness relied upon was that the appellant was not permitted to see the faces of the witnesses on the video screen, although counsel and the jury were able to do so. The appellant contended that the procedure breached his right to confront the witnesses. The Court held that the procedure did not result in an unfair trial and that the right to confront the witnesses was not an absolute one but had to be weighed against the interests of justice, including the protection of witnesses. 53 It was argued on behalf of the accused Wilkie that this Court cannot approach the matter in the way the Court did in Ngo because there was no "balancing exercise" as required by s 5B(3). It was submitted that the protection of the accused's interest under s 5B(2) is an absolute one and is not constrained by the countervailing public interest found under s 5B(3). As the Court in Ngo itself recognised, there is no occasion to consider s 5B(3) until the court has been satisfied that none of the matters mentioned in s 5B(2) arise. The consideration of unfairness under s 5B(2), therefore, is a separate issue from the requirement to consider the interests of justice generally that arises under s 5B(3). 54 It has often been noted that the concept of a fair trial, which is embodied in s 5B(2), is not to be equated with a perfect trial. This was recognised in Ngo at [99]. The court quoted from Brooking J in Jarvie v Magistrates' Court (Vic) [1995] 1 VR 84 where his Honour stated that a fair trial did not mean a trial "free from possible detriment or disadvantage of any kind or degree to the accused". When considering the issue of whether an accused can have a fair trial, the court is concerned with whether the trial will be rendered unfair "when judged by reference to accepted standards of justice": Barton v The Queen (1980) 147 CLR 75 at 97. The "accepted standards of justice" take into account other interests and considerations that arise in respect of a prosecution of serious criminal offence, including the interests of the public generally, and witnesses and victims in particular. 55 It is unnecessary in determining the present case to embark upon an extensive review of cases in the appellate courts concerned with the concept of a fair trial and the means by which a court endeavours to ensure that a particular trial will be a fair one. Many of the considerations that inform a court whether a particular trial will be fair are to found in the cases concerned with the court's power to stay a prosecution as an abuse of process; see for example Jago v District Court (NSW) (1989) 168 CLR 23. But in all cases where the question whether a fair trial will be put at risk by the procedure adopted at trial, the admission of evidence or for any other reason arises, the court invariably engages in the exercise of balancing interests to determine that question. 56 So in Jago Mason CJ stated at 33:

[45]

The Court then went on to consider s 5B(3) and the interests of justice generally. 60 The Court in Ngo noted that there was a tension between s 5B(2)(c) and s 5B(3), that tension being the fact that it is impossible for the court to determine whether the making of the direction will result in an unfair trial without considering some aspects at least of the interests of justice. I find a tension between the general discretion under s 5B(1) and the terms of s 5B(3). It seems that the latter section is intended to be a further restriction on the discretion to give a direction additional to the restriction found in s 5B(2). As has already been noted, s 5B(3) only applies where the audiovisual link is to be used in New South Wales. This seems to suggest that the legislature expected that witnesses in New South Wales would generally be expected to attend the court in person and thus further limited the use of the procedure where the witness was within the jurisdiction. But I find it difficult to understand how the general discretion under s 5B(1) is exercised other than by considering the interests of justice. However, to the extent that there is a difference in the approach to be adopted where s 5B(3) does not apply, it would seem to favour the making of the direction. 61 It is submitted on behalf of the accused that the procedure would be unfair because the witnesses' evidence is significant, issues of credit will arise, and the cross-examination will be lengthy and will involve a large number of documents. It is also noted that there is no countervailing matters that would support the making of the order, such as the witnesses being ill, being physically unable to travel or that they are in need of protection. 62 I accept that the evidence of the witnesses, particularly that of Scrivens, is significant to the Crown case. I am also prepared to accept that issues of credit might arise. I am not so prepared to accept that cross-examination will be lengthy nor that it necessarily involves large amounts of documents that will not already be in evidence and readily available to the witness. 63 One of the problems in determining the present application is that from experience I find it difficult to rely too much upon what I am told by the parties before a trial commences. This is not an observation made by way of criticism of those presently appearing before the Court or those who have appeared before me in the past. The simple fact is that criminal trials can take on a life of their own and estimations of the number of witnesses to be called, the duration of the trial and the extent to which any particular witness is to be examined or cross-examined are notoriously unreliable. 64 It is perhaps only natural that the Crown would seek to place the impact on the trial of the use of an audiovisual link to receive the evidence of important witnesses in the best light and the accused would put it in the worst light. This is to some degree why I raised the issue of whether the Crown might be prepared to give an undertaking as to the costs of an aborted trial if the procedure proved not to be as efficient and effective as the Crown holds it out to be. I will return to the issue of costs shortly. But although I have reservations about the effectiveness of the use of an audiovisual link in the present case, I am not convinced that it is unfeasible because of the peculiarities of this particular case. 65 I take comfort from the views expressed by Finn J in McDonald v Federal Commissioner of Taxation (2002) ATC 4271 at 4276 that video-link evidence was being used with greater regularity and acceptance in court proceedings as "judges have come to acknowledge the apprehended disadvantages from the use of video-links have not materialised as expected". 66 It has been submitted by Mr Hammerschlag that there is ample authority to support the proposition that, where the evidence is crucial, credit issues arise and there will be long cross-examination involving documents, the procedure sought by the Crown will necessarily be unfair. The written submissions filed on behalf of the accused Wilkie, after referring to these aspects of the evidence in the present case, contain the following paragraph:

[49]

There is nothing in that passage that supports the proposition for which it is cited. The last line tends to suggest to the contrary that the court would make the direction under s 5B(1) in some situations despite the fact that unfairness might arise. 69 The simple fact that the witness is not before the court and, therefore, cannot be confronted by the accused is not itself a sufficient reason to refuse to make a direction under the section in a criminal trial. Nor is the simple fact that the video link procedure is deficient to viva voce evidence from the witness in person a sufficient basis for not using the procedure. To reject the application on these grounds would be to act contrary to the intention of the legislature. Section 5A provides that the provisions apply in criminal proceedings and that fact has been specifically, although parenthetically, stated presumably in case any doubt arose about that fact. In R v Stackelroth (1996) 86 A Crim R 438, the Court made it clear that a trial judge could not reject a deposition under the then equivalent of s 285 of the Criminal Procedure Act 1986 simply because the witness would not be before the trial court and could not be cross-examined because the legislature must have taken that fact into account when enacting the provision. 70 I note in passing that the accused did not seek to have the witnesses called for cross-examination at committal proceedings. I also understand from the Crown's written submissions that Scrivens gave evidence at the inquiry into the collapse of the HIH group and the accused were present. Neither of these matters is particularly significant to the exercise of the discretion but they put some light on the claims now made that the accused have lost any right to confront the witnesses that they might have enjoyed. 71 The question of whether the admission of evidence or the adoption of a procedure for receiving evidence would result in an unfair trial must be determined in the light of the powers that a court can exercise to minimise or eliminate the unfairness. This was made clear in the stay cases such as Jago and the proposition is now so entrenched that it needs no further reference to extensive authority to support it. It is a consideration that applies when a court is asked to exclude evidence on the basis that it would be unfairly prejudicial under s 137 of the Evidence Act 1995 (NSW): R v Em [2003] NSWCCA 374. The unfairness in the use of depositions in a trial could be overcome by a direction to the jury that they had to take into account when assessing the evidence of the witness making the deposition that they had not seen the witness: R v Mendham (1993) 71 A Crim R 382. 72 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. 73 These directions and any other that the accused thought necessary to address deficiencies in the evidence or the difficulties in cross-examination caused by the video link procedure would simply be to remind the jury of the practical implications of the onus of proof in the circumstances of these two witnesses giving evidence by video link. Much of the criticism of the procedure overlooks the fact that deficiencies or difficulties encountered with the evidence of the witnesses caused by the use of the video link should rebound on the Crown and the jury simply need to be reminded of this fact in fair but forceful terms. 74 It is highly likely to become clear to the jury that the witnesses are giving evidence in this manner not because of any reason arising from the defence camp. For example, there will be no prejudice arising from the suggestion that the witness have fears as a result of giving evidence against the accused. Quite to the contrary, I have no doubt that much will be made of the fact that the witnesses have refused to come to Australia and the reasons for that refusal will be fertile ground for cross-examination and addresses to the jury. This is a further reason why it should not be difficult to impress upon the jury that any defect in the evidence due to the use of the procedure should be visited on the Crown. 75 It was submitted that the use of audiovisual means of securing the evidence of the witnesses would be unfair because their evidence may be unreliable, principally on the basis that they might have reasons of their own for attempting to put the blame on the accused for their own deficiencies in carrying out their duties during the audit. This is clearly a matter of fact for the jury and does not impact upon whether or not the application should be allowed other than has been already addressed on the issue of the credibility of the witnesses. If there is any reliability issue arising within s 165 of the Evidence Act 1995 the accused can request that a warning be given under that section. It is rarely appropriate to give such a warning where the issue arising from the evidence of the witness is one of credibility: R v Fowler [2003] NSWCCA 321. 76 I have already indicated that I find it difficult at this stage in the proceedings to make a reliable evaluation of the difficulties that might be occasioned to the accused in a practical sense from the adoption of a video link. I do not under estimate them, but neither do I overestimate them. I cannot believe that the technology is such that the transmission of documents to the witnesses will significantly impede the cross-examination. The Crown has indicated that it is prepared to assist in having documents placed in the room from which the witness will give evidence for the purposes of cross-examination even on a confidential basis. As I have already indicated I have difficulty knowing what documents might be needed for cross-examination that are not already in the hands of the Crown and should be available to the witnesses or will have been in evidence by the time the witnesses give evidence. Presumably there will be a significant degree of overlap in the relevant documents for the two witnesses. 77 During the course of the proceedings I raised with the Crown whether the Director of Public Prosecutions would be prepared to give an undertaking or assurance about the reimbursement of costs thrown away by the accused should this procedure fail to be as effective and fair as I anticipate it will be and thus result in the discharge of the jury. The Court gave some time after it reserved its decision to allow the Crown to seek instructions and respond. The Crown has indicated that no undertaking or assurance will be forthcoming. 78 I find this to be a disappointing response seeing that the prosecution was launched knowing that neither witness was prepared to come to Australia and that the Crown has conceded that without the evidence of the witnesses the prosecution would face significant difficulties. The situation is aggravated by the fact that the Crown at present intends to call the witnesses at the end of the Crown case, as I understand it some weeks into the trial. The Crown asserts, perhaps correctly or perhaps not, that the video link procedure should present no practical difficulties or unfairness to the accused. I am not as confident of the correctness of the first of those two assertions as the Crown appears to be. 79 In refusing to give an undertaking or assurance, the Crown relies upon decided authorities that hold that the Court lacks the power to require the Crown to pay costs if the trial aborted and submits, no doubt correctly, that the Court lacks the power to make the payment of costs a condition precedent to the success of the present application. It is precisely for the reason that the Court may not be able to order costs against the Crown and because the Cost in Criminal Cases Act 1967 does not apply to Federal proceedings that the suggestion was made that the Crown give an undertaking or assurance. The Crown submits that the remedy for an aborted trial, if one is needed, lies in a stay on the further prosecution of the accused until costs thrown away are paid. As the accused have responded, this is perhaps an empty remedy in light of the fact that the Crown case is placed in difficulties if the video link procedure fails to prove a fair and effective method of adducing the evidence. 80 Although it was submitted on behalf of the accused Wilkie that the refusal of the Crown to give an undertaking results in unfairness to the accused under s 5B(2)(c), I do not accept that submission. As I have already stated, that provision is concerned with ensuring the fairness of the proceedings. It is not concerned with fairness between the parties in a more general sense. The refusal of the Crown to give the undertaking may be seen by the accused to have resulted in unfairness to them if the trial miscarries but it does not effect the fairness of the trial itself. 81 I have considered whether in light of the failure to give the undertaking I should refuse the application as one of the matters to be taken into account in the general discretion under s 5B(1). I am satisfied, so far as I can be, that the procedure will not operate to render the trial of the accused unfair. There is considerable public interest in the prosecution proceeding for obvious reasons given the circumstances in which the Crown alleges that the offences were committed and how the charges have come to be laid. The offences, if proved, are serious despite the fact that the accused may not have been directly gaining financially from the misconduct alleged against them but given the repercussions of their conduct for FAI and the HIH group. 82 Notwithstanding the matters raised by the accused in answer to the Crown's refusal to give an undertaking in any shape or form and notwithstanding that I have been troubled by the refusal and the weight to give to it, I believe that I should make the order. As junior counsel for Mr Wilkie conceded in written submission in answer to the Crown's refusal, it is not anticipated that there will be a need to abort the trial. I consider at this stage in the proceedings that it is unlikely that there will be a need to take the drastic step of discharging the jury because I do not believe that the cross-examination of the witnesses will prove so difficult or so unfair to the accused that such a course will be warranted.

At a glance

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Judgment (52 paragraphs)

Legislation Cited (11)

Cases Cited (19)

Cited By (9)