Ms Jones (a pseudonym) is an important witness in the murder trial of the accused, Bahra Youseff. On 15 August 2024, a few days before the trial commenced, an application was made by the Crown for Ms Jones to be called by way of audio-visual link ("AVL") pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ("the Act") as she was about to give birth to her second child, in Queensland, where she lived. For a number of reasons, that application was adjourned, and was renewed with updated evidence on 9 September 2024, including that Ms Jones gave birth to the child on 30 August 2024.
The accused opposed the application on the basis that calling this witness by AVL would be unfair. Mr Stratton SC drew attention to very serious nature of the charge, which carries a maximum penalty of life imprisonment. He also submitted that Ms Jones is a crucial witness, perhaps the most crucial witness in the trial. Mr Stratton SC also drew the court's attention to some practical problems which may arise if this witness was called remotely.
On 9 September 2024, I determined that Ms Jones be directed to appear and give evidence by way of AVL. The Crown intended to call her to give evidence on 11 September 2024. I now set out the reasons for my decision.
[2]
Brief facts
In order to appreciate the significance of Ms Jones's evidence it is necessary to have some understanding of the Crown case, and the evidence on which it is based.
On 30 November 2020 at approximately 2:35am, the deceased, Adnan Salameh, was shot and killed at the home of his girlfriend, Ms Smith (a pseudonym), in Tregear. Two men dressed in black with their faces covered are said to have kicked in the front door of the residence. One of the men fatally shot the deceased in the right shoulder and right thigh with a shot gun. The deceased and Ms Smith were drug users (who also sometimes supplied drugs). At the time of his death the deceased had allegedly accrued some debts to drug suppliers and others. It is alleged that Ms Smith had accrued a debt to the accused whom she only knew as "B". Ms Smith is the only eyewitness to the shooting.
The accused was arrested for the murder of the deceased one year and nine months after his death, on 31 August 2022. Apart from Ms Jones's evidence, the case against the accused is circumstantial. The Crown alleges that Ms Smith had accrued a $1500 drug debt to the accused, after acquiring cocaine on credit from him several weeks before the death of the deceased. The accused is said to have put increasing pressure on Ms Smith to recover the debt including eventually threatening her and her child (a child who lived with their father, but who sometimes visited Ms Smith). Ms Smith determined that because the accused had threatened her child, she would not repay the debt.
On 8 November 2020, it is alleged that with the help of Ms Smith, the deceased broke into the home of two friends and ex-work colleagues of Ms Smith (Ms Williams (a pseudonym) and Ms Jones (the subject of this judgment)) and stole several thousand dollars. Ms Williams and Ms Jones had in their home a cash box which contained cash earnings from their work. Ms Smith had also kept her cash earnings in that cash box. It is alleged that the accused knew all three women and had supplied them with cocaine.
After the robbery, Ms Jones posted a Snapchat story which published her belief regarding the deceased and Ms Smith's involvement in the robbery. After the posting of the Snapchat story, the accused contacted Ms Jones and Ms Williams saying that he wanted his money back from Ms Smith.
It is alleged the accused went around to Ms Smith's residence in Tregear by car, with another man, about two weeks before the deceased's death, and they spoke outside the residence on the street. Ms Smith stated that she told the accused she would not pay him back because of the threat to her child, and the accused appeared to accept that. She did not hear from the accused after that discussion, although the accused was messaging the deceased after that meeting.
[3]
The circumstantial case
Part of the circumstantial case against the accused includes evidence that in the hours leading up to the murder, a car very similar to the car he owned was seen circling around streets surrounding Ms Smith's home at Tregear. Further, in the hours leading up to the killing a phone in his name was "pinging" off phone towers in the area. In particular, and importantly, at around the time of the shooting, the phone was "pinging" off two towers which covered the area which included Ms Smith's house. The phone records also indicated that the accused's phone left the area very shortly after the shooting. A speeding fine issued about 1 hour and 20 minutes later was incurred in relation to the accused's car in an area which aligned with where the phone tower evidence indicated his phone was located at the time. The infringement notice relating to this fine was found at the accused's home. The fine was paid by the accused's mother. In short, it is alleged by the Crown that the movements of the phone and the car align on the evening of 29 November 2020 and the morning of 30 November 2020 and that those records put the accused in the area of the shooting leading up to, and at, the relevant time.
The circumstantial case is strengthened by the anticipated evidence of Ms Jones, including evidence of alleged admissions by the accused on the morning in question, albeit I note that the Crown did not include all of the admissions in its opening address.
The Crown Case Statement summarised Ms Jones's anticipated evidence in relation to the admissions as follows:
"On 29 November [2020], the accused contacted Ms [Jones] to ascertain whether Ms [Smith] had any weapons. Ms [Jones] replied 'I think [Ms Smith] has a pick axe'. The accused told Ms [Jones] that he was going to see Ms [Smith] and asked Ms [Jones] a number of times whether Ms [Jones] knew if Ms [Smith] would be home. […]
Following the incident, the accused contacted Ms [Jones], Ms [Jones] described the accused as 'frantic'. The accused said 'You don't know me, delete all my contacts, delete all my messages'. The accused told Ms [Jones] that he [had] been to 'her house', 'I hurt him' and something to the effect of 'shot in the leg'. Ms [Jones] understood that the call related to Ms [Smith] and the deceased as a result of their conversation earlier in the night. The accused texted Ms [Jones] at 4:30am following the shooting and requested that she delete his messages and contact details. Call charge records establish that a call was made at 2:48am (connected to the Eastern Creek cell tower) and the text messages [were] sent at 4:29am and 4:31am. The Crown relies upon the evidence of this call and these text messages as evidence of admissions by the accused to the murder of the deceased."
It is clear that this is significant evidence in the Crown case. It is also clear that Ms Jones's credit will be in issue, as whilst there are some call charge records which support Ms Jones's account, she is the only source of the details of the content of the telephone call and text messages.
[4]
Evidence in support of the application
A number of affidavits were relied upon which had been prepared by the Crown's instructing solicitor: dated 12, 15, 23 August and 9 September 2024. The Crown also tendered a statement of Ms Jones dated 8 September 2024, in relation to the birth and surrounding issues, and some medical notes.
One of the annexures to the instructing solicitor's affidavit of 12 August 2024 was a medico-legal opinion prepared prior to the birth by Dr Adam Mackie of Neutral Bay, a consultant obstetrician in public and private practice. He had not assessed Ms Jones, but provided a report based on certain assumptions. Some of the evidence he provided (such as his opinion as to travel in late pregnancy) is clearly no longer relevant.
Dr Mackie opined that he recommended against a mother travelling without her newborn as it would be detrimental to mother-child bonding and the establishment of breastfeeding, as well as placing her at a higher risk for postnatal depression due to the disruption of psychosocial supports in the immediate postpartum period.
Dr Mackie further noted he would not recommend a newborn travelling with its mother given the significant disruption it would cause for bonding and breastfeeding and the likelihood that it would present significant stress for the mother and increase her risk of post-natal depression, again referring to the disruption of psychosocial supports.
Ms Jones's statement of 8 September 2024, set out that she has a 14 month-old child and gave birth to her second child on 30 August 2024. During that delivery she suffered perineal injury requiring "a lot" of sutures. She states that as a result of the sutures she is unable to stand for more than five minutes or walk any distance and has constant pain in her abdomen. When she feels discomfort, she needs to sit and lean back to relieve the discomfort and relieve the pressure. She indicates that she finds it difficult to nurse the baby without laying down and finds it difficult to tend to her other child. She is also suffering other conditions arising out of the birth including mastitis for which she is being treated with antibiotics. The baby is showing signs of jaundice, and if that develops, she has been advised to take the baby immediately to hospital.
Ms Jones adds that as a result of the birth, she has been recommended rest. She states she finds it hard to stand or sit for any period of time and finds that laying down is the best option for her at the moment.
Further, her partner is suffering from shingles and has had to isolate from the rest of the family for the past two weeks. Her family is all in New Zealand and she has some support from her partner's family. If she were required to travel to Sydney, she states she does not have any person who would be able to look after her children in Sydney. She states she is not comfortable travelling with the children and she is not able to drive. Ms Jones states that if she were required to give evidence in the trial of the accused (I infer she means in Brisbane), she can be supported by her partner's mother and sister whilst she gives evidence.
The medical records support Ms Jones's account of the perineal trauma and sutures, and that she has mastitis and breast-feeding issues. Also included in the medical material is a medical certificate in relation to Ms Jones's partner.
[5]
Consideration
Section 5B of the Act reads as follows:
5B Taking evidence and submissions from outside courtroom or place where court is sitting - proceedings generally
(1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.
(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.
(2A) A court must not make a direction under this Part in relation to the giving of evidence or making of a submission by audio visual link by any accused detainee in any criminal proceeding in relation to the detainee concerning an offence alleged to have been committed by the detainee. However, this subsection does not prevent the making of such a direction in relation to an accused detainee in any other proceeding to which this Part applies.
Note -
Part 1B of this Act contains provisions with respect to the appearance of accused detainees who are in custody in criminal proceedings.
(3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.
Relevantly, s 5B(1) provides the court with a discretion to direct a witness to give evidence from a place outside New South Wales. This discretion is circumscribed by the factors set out in s 5B(2) which provides that a court must not make such a direction in certain circumstances.
I note that s 5B(2A) does not apply as that only applies to evidence by an accused, and s 5B(3) is not applicable as the witness is not within New South Wales.
Turning then to the factors in s 5B(2). As to s 5B(2)(a), I was satisfied that there are court facilities in Brisbane available on the required days which are appropriate to use for the AVL evidence. I was further satisfied that the procedure (by way of a Secure Timeboxed Viewer portal) for showing the witness documents remotely, including secure documents, appears to be adequate and appropriate. I was further satisfied that a local junior barrister (acceptable to both the Crown and the defence) would be available as an independent person to be present in the room with the witness giving evidence (but not looking at any documents shown to the witness), to ensure an appropriate environment was maintained while the witness was giving evidence. I am also informed, and accept, that a police officer can make a laptop available to the witness and provide any other assistance.
As to s 5B(2)(b), taking into account all of the circumstances, including the health and other personal circumstances of the witness, I am not satisfied that the evidence can more conveniently be given or made in the courtroom at which the court is sitting.
As to s 5B(2)(d), I am not satisfied that the person in respect of whom the direction is sought will not give evidence.
That leaves s 5B(2)(c), and the question of whether I am satisfied that making an AVL direction would be unfair to the accused.
I start with some preliminary observations. First, the trial is being held in Court 3 of the King Street court complex in the middle of the Sydney CBD. This is one of the oldest courts in Australia. While the acoustic issues can be ameliorated by the use of microphones, there are issues with lines of sight. From my observation, I have noted that each juror does not have an equal opportunity to see a witness clearly in the witness box. When a witness is called in person, the jurors furthest away appear to have a more compromised view than the closer jurors.
Second, the court room is equipped with two large screens, one of which is directly opposite the jury box, facing them. The trial has already seen a witness called using the audio-visual equipment (a government forensic pathologist), [1] and their image appeared on the screen much larger than their size in real life. Further, there is an unimpeded line of sight between every juror and the screen, and the witness can easily be heard. There was no problem with the connection, including no delay in the transmission when this government witness was called by way of AVL.
Third, in 2024, there is a good level of familiarity throughout the whole community with AVL communication. This is partly because this technology has been around for a long time, and partly because it was used extensively during the COVID-19 pandemic in many personal and professional contexts.
Now, turning to observations in the case law. In R v Wilkie [2005] NSWSC 794, Howie J stated, almost 20 years ago:
"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. […]
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.
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. […]
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."
In McNamara v The King [2023] HCA 36 at [42], Gageler CJ, Gleeson and Jagot JJ referred to the concept of a fair trial, citing Awad v The Queen (2022) 275 CLR 421; [2022] HCA 36 at [115], quoting Jarvie v The Magistrates' Court of Victoria [1995] 1 VR 84 at 90:
"In a joint trial, as in any other trial, '[a] fair trial according to law does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused'."
Justice Howie in Wilkie also stated the following at [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. […]"
Further in Derbas v R [2007] NSWCCA 118, involving a trial conducted in 2005, with technology clearly inferior to that currently available, the following was observed by McClellan CJ at CL at [39] (Hidden J agreeing):
"There may be circumstances where imperfections in a video transmission will have the consequence that evidence which is proposed to be received by a video link should be excluded. However, I am satisfied that this was not such a case. His Honour was careful to explain the potential difficulty in the transmission to the jury before Mr Smith was called. A short delay between the receipt of the picture image and the words was readily capable of being accommodated by the advocates and the witness. I do not believe it would have caused a relevant distortion of the evidentiary process nor allowed the witness an advantage in cross-examination. I also do not believe it would have caused any difficulty for the jury in assessing Mr Smith's credit."
A more recent case in relation to the consideration of evidence by way of AVL is R v Sigalla [2016] NSWSC 1178 where Adamson J stated at [9] and [11]:
"Having regard to the importance of Mr Kelliher to the prosecution case, it is a significant potential disadvantage that he will not be here in the presence of the jury and Mr Sigalla to be cross-examined in the trial. However, the availability of suitable audio visual link facilities conducted by an independent organisation, which is apparently professional, would, in my view, tend to ameliorate any unfairness to Mr Sigalla.
[…]
Furthermore I, as the trial judge, could give an appropriate direction to the jury so that they do not draw any inference adverse to the accused arising from the circumstance that Mr Kelliher would be giving evidence by audio visual link."
In 2017, in KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249, Beazley ACJ, Walton and N Adams JJ stated at [66]-[67]:
"The point made in relation to assessing the credibility of the witnesses must also be rejected. 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. […]
While it has sometimes been acknowledged that the question whether the credibility of the witness is in issue might by relevant to the decision to use AVL […], there are numerous decisions where it has been held that the demeanour of a witness could be adequately assessed by AVL." (Citations omitted.)
Further, Wilson J stated in R v AS [2023] NSWSC 885 at [18], [19] and [21]:
"The accused argued that it would be unfair to him to permit the witness to use the AVL facility for her evidence, but I do not accept that submission. In the modern era, evidence is commonly taken this way and the judicial sky has not yet fallen in. Criminal trials have proceeded, and justice has been administered.
Evidence taken by such means has become much more familiar in recent years, corresponding to some extent with the greater use of electronic communication in the wider community. In ordinary society most people are now quite used to face to face communication at a distance by screen, by the use of AVL or some other similar means. Telephone calls incorporating a video facility are common, as is the use of applications designed to promote communication using a computer or camera enabled telephone. At the height of the COVID-19 pandemic, in 2020 and 2021, such measures were the only means of seeing friends or loved ones for many people. Partly because of technological advancement intended to meet the difficulties posed by restrictions upon movement and association in those years, most social activity and business can now be, and routinely is, conducted through a Smart Phone. It is possible to consult a doctor, hold a business conference, or chat with friends, through a camera and screen. […]
More generally, the use of an AVL facility by a court to take evidence remotely began well before the pandemic, in response to the needs of witnesses who it was anticipated might find the process of giving evidence in a court room particularly difficult. Such measures were adopted because of the experience of the courts of traumatised witnesses whose trauma was exacerbated by having to sit in a witness box in the presence of strangers (even in a closed court, where there are still many participants and staff) and answer questions about an event the witness regards as distressing."
It can be seen, therefore, that even where issues of credit arise, courts have been prepared to direct that the evidence of a witness can be given by way of AVL, including in murder trials.
In my view, in light of the advances in technology, and the familiarity of the community and the courts with AVL communication, there is little, if any, detriment to having an important witness give evidence by way of video link, especially where, as here, appropriate arrangements are in place to be able to show the witness any document as required and an independent person can maintain appropriate conditions for the witness.
In light of the fact that the witness has given birth just over a week ago, is suffering from various birth related health issues, and only has family support to assist her with the infant and the other child in Queensland, I was of the view that the witness should be directed to give evidence by way of AVL. I was not of the view that the giving of evidence in this way would be unfair to the accused. As noted, the screen in the court room is large, and in some ways provides a better and more consistent view of the witness than if she were in the courtroom. To the extent that any unfairness may arise because she is not physically in the same space - and if it is thought necessary - the jury could be directed that as the credit of the witness may be regarded as a crucial issue in the trial, 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 an audio video link should be resolved in favour of the accused.
It is for these reasons, I directed that Ms Jones appear and give evidence by way of AVL from Brisbane, pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).
[6]
Endnote
Section 5BAA provides that such a witness (in NSW) must be called by AVL unless the court otherwise directs, and such direction must be made only if the court is satisfied of the matters in s 5BAA(4).
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Decision last updated: 08 October 2024