Detective Nagle said that all the messages had been transmitted from the same Telstra payphone. She understood the person, Caroline, to be Mr X's daughter. She did not know the significance of the person, Angela.
15 It is to be noted that the last of the text messages was received at a time when Mr X was present at the Downing Centre court complex.
16 Stacey Romeo, a solicitor with the Officer of the Director of Public Prosecutions, with the carriage of the prosecution, gave evidence of her discussions with Mr X on the afternoon of 16 March. He conveyed to her that he was extremely distressed about the prospect of giving evidence in open court as the result of threats that had been made to him outside court. He claimed his stress was also as the result of being present in the same room as the accused. He believed that the experience would be less stressful if his evidence was given by audio-visual link and that he would be able to concentrate better.
17 Section 5B of the Act makes provision for a court, either of its own motion or on the application of a party, to direct that a person give evidence by audiovisual link from a place other than the courtroom. Section 5B(2) provides as follows:
(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 the party, 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.
…
(3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or the making of a submission to the court by audio link or audiovisual 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.
18 The Crown bore the onus of establishing that it was in the interests of the administration of justice for the balance of the evidence of Mr W and Mr X to be taken by audio-visual link.
19 Mr Stanton submitted that Mr X is a person with a lengthy criminal record, including for perjury. He observed that it was well open to Mr X to have orchestrated the sending of the text messages or that persons unconnected with the accused may have been responsible for conveying threats to Mr X that are not related to these proceedings. I accepted that Mr X may have staged the threats. There was no evidence to suggest that he had. Mr X's evidence to which I have referred at paragraph [7] above was that he considered the threats related to his role as a witness in these proceedings. This was a relevant consideration in my determination. I was not concerned with whether as a matter of fact the threats were made in connection with these proceedings.
20 There was no evidence that the accused were responsible for any threats made to Mr X. I approached the application on the basis that there was evidence that Mr X entertained fears for his safety and the safety of his family in connection with giving evidence against the accused and that those fears had occasioned considerable stress to Mr X.
21 The Crown submitted that there was the risk of further outbursts like the one that took place on 13 March 2006. The conduct of the voir dire had been attended by considerable delay. In the Crown's submission, it was in the interests of justice that Mr X give his evidence without the risk of further interruption.
22 In making the direction with respect to Mr X and Mr W, I took into account that the evidence was being taken in the absence of the jury. The purpose of taking the evidence of these witnesses on the voir dire was to remedy any disadvantage to the accused flowing from the circumstance that the counts relating to the Lawford Street incident were preferred ex officio, and that while the accused were committed for trial in respect of the counts relating to the murder of Ahmed Fahda, Mr X did not give evidence at the committal hearing although an order had been made for his oral examination on that occasion. There was no prejudice to the accused arising from the evidence being given by audio-visual link at the voir dire. No question of assessing the credibility of the witnesses arose and there was no need to address considerations of any adverse inference being drawn by reason of the evidence being taken in this way.
23 I considered it in the interests of justice that the evidence on the voir dire be taken without further delay. The risk of an outburst, such as the earlier one, was, to my mind, greater at a hearing in the absence of a jury than may be the case at a trial, where there is an incentive to the accused to exercise self-control.
24 Both Mr Webb and Mr Stanton submitted that taking the evidence of the witness of Mr X by audio-visual link would be unfair to their clients because of, what was submitted to be, the right to confront one's accuser in open court. I did not consider that the accused were being deprived of any such right by the evidence being taken by audio-visual link: R v Mainprize [2005] NSWCCA 311.
25 I considered that Mr W and Mr X each held fears about giving evidence in the presence of the accused. I was mindful that their evidence was being taken on a voir dire and that they would be required to give evidence again at the trial. I considered the interests of justice included ameliorating the strain imposed upon each of them in being required to give evidence in these proceedings on more than one occasion.