I agree with those observations.
67 Section 15YZ requires the Court to give such direction as the judge thinks necessary to ensure that the jury gives the same weight to the evidence as if it had been given by the witness in the courtroom or other place where the court is sitting. But in an appropriate case where, for particular reasons, there is a need to remind the jury of the importance of the demeanour of a witness this can be done. Moreover, again in an appropriate case, the jury may be directed to take into account in assessing demeanour any particular matters emerging from the manner in which evidence has been given through the video link. Such a direction would not conflict, in my view, with the direction required by s 15YZ. Although I did not have the advantage of seeing the witness Kwon give his evidence at committal, I have had the advantage of reading carefully the two transcripts of the committal evidence which were placed before me for the purposes of this application. It did not seem to me that Mr Boulten SC was under any disadvantage at all in relation to his cross-examination. In fact, the examination was forceful and effective. The attack on the witness's credit was patent; and it was apparent, even from a reading of the transcript, that there may have been a deal of prevarication ( or apparently so) in relation to the identification issue so far as Kwon's evidence was concerned.
68 For these reasons, I do not accept that the use of AVL facilities will, in any practical sense, impose any real measure of unfairness on the accused. This is certainly so in the case of the voir dire applications and it may well be the case in the event that the evidence is allowed at trial.
69 I turn next to consider the arguments that have suggested that the witness Kwon might not be in a position to give evidence "unconstrained by any external influence". It is, of course, not for me to make a final judgment on the proprietary of the methods by which the committal evidence was given. At a prima facie level, it does appear unsatisfactory that the two FBI Agents and Mr Kromberg were in the same room as the witness when he was giving his video link evidence.
70 In my view, s 15YW provides an complete answer to this submission. The court has the power to direct that the evidence that is given by video link be given in the presence of an observer. The observer is to be a person who is independent of the prosecutor and the accused and who is in a position to give a report to the Court about the person's observations in relation to the giving of the evidence. Clearly enough, Kwon, as a prisoner in the United States, requires supervision when he is giving evidence by video link. I see no reason why that supervision should be by any of the people who were present in the room when he gave his evidence at committal. Moreover, an independent observer would be able to confirm that the evidence is being given free from any outside influence.
71 In making the orders that I will make in due course I propose to make an order under s 15YW. I would ask the parties to confer and select between them, if that is possible, a person who will be suitable to both sides as an independent observer. When that selection has been made, I will incorporate the nomination of that person in the orders that I propose to make.
72 The next major argument postulated that the Court will have no effective way of enforcing the oath or affirmation which the witness would be required to take. Again, it seems to me that ss 15YZA and 15YZB provide the answer to this submission. A person who gives evidence under a s 15YV direction or order is taken to have given it at the courtroom or other place where the court is sitting. This provision has effect for the purposes of laws relating to, inter alia, contempt of court and perjury. Section 15YZB allows an oath or affirmation to be sworn either by means of the video link in the same way as if the witness were giving evidence at the courtroom or to do so in some other manner as directed by the court. Presumably, Kwon, because of his religious beliefs, might be asked to swear an oath on the Koran. The arguments which were advanced by the accused, however, place considerable reliance upon the decision of Greg James J in Regina v Park. It will be necessary to consider carefully his Honour's reasoning.
73 In Park, an application was made on behalf of the Crown shortly before trial. It was to take the evidence of a Korean woman, Ms Hwang, by video link. This young woman was the girlfriend of the accused. He had been charged with the murder of his wife and children and the subsequent dismemberment and disposal of their bodies. Ms Hwang was resident in Korea and had indicated that she would not come back to Australia to give evidence. Hence, the application by the Crown to take her evidence by video link.
74 Greg James J declined to make the order sought by the Crown. First, he doubted whether he had power under Part 36 Rule 2(a)(i) of the Supreme Court Rules to do so. Secondly, he referred to the absence of evidence to persuade the Court of the willingness of the witness to give evidence by way of AVL. Thirdly, he referred to the absence of evidence that the witness was willing to give evidence truthfully; and in accordance with some such sanction as an oath of affirmation. Although his Honour relied on all these matters, it seems that the most persuasive of them was his belief that Ms Hwang's evidence might be unreliable in some significant respects and that, in those circumstances, it would be inappropriate to let the evidence to be given by way of video link without the sanction of the New South Wales Criminal Law that would attach to evidence given falsely under oath. At para 13 his Honour said:
"Accepting the importance of the testimony and the possibility that the testimony may well be unreliable, at least in significant aspects, it does not seem to me that I can, in those circumstances, receive the testimony via means such that it is given without the sanction of the criminal law of New South Wales and it is conceded both that the legal sanction of the oath would be so limited that it would not apply to the witness unless she was prepared voluntarily to come back within the New South Wales jurisdiction and that there is no equivalent local sanction".
75 There are a number of significant distinctions between the situation in Park and the present matter. First, the rules of court under which Greg James J purported to act were markedly different from the provisions of Part 1AE of the Crimes Act (Commonwealth) 1914. Secondly, the evidence on the present motion establishes that each of the three witnesses will reasonably be available to give evidence by video link. There is no suggestion that they are unwilling to do so. Thirdly, the legislation governing this application enables an oath or affirmation to be sworn or made by the potential witness and the evidence is taken to be given by that person at the courtroom where the court is sitting.
76 Now, it is true that the court could not immediately use its powers of coercion (for example, in the case of a contempt) because the witness would not be physically in the court's grasp. But, importantly, the power is expressly maintained.
77 In my view, the situation is not markedly different from the circumstance where, following evidence given by a witness, a decision is later made to bring a charge of perjury. The passage of time may have brought about a situation where the witness is no longer within the jurisdiction. It may in practical terms be difficult and burdensome to continue with the criminal charge against the perjuring witness. But it would be impossible to suggest that evidence should not be taken from a witness because of that possibility. Moreover, the reasoning of Greg James J, taken to its logical conclusion, would mean that in many, if not most criminal trials, a video link application should be refused. Credit and reliability are issues that arise in relation to many witnesses involved in the prosecution case in a criminal trial. It seems to me that the provision of sections such a ss 15YZA and 15YZB are there precisely to rebut the argument that found favour with Greg James J. I would respectfully conclude that the reasoning of his Honour has little, if any, bearing on the present application.
78 The next ground of opposition to the application related to aspects of inconvenience and the impact on principles of open justice were the application to be granted. I am conscious of the fact that AVL evidence in the present matter would impose a burden on the court, the parties and the jury in due course. This is because, as I understand it, it will be necessary to sit very early in the morning in order to take the evidence. At this stage, I am not satisfied that this is a factor that would lead to any unfairness so far as the accused is concerned. I understand that the accused himself was able to be present during the AVL evidence taken at committal. No doubt, as I have said, it would be burdensome on everybody in the courtroom for the evidence to be taken at the break of day. That burden, in my opinion, is not such as to warrant a refusal of the application. Moreover, I do not see that the procedure would impinge on principles of open justice. It may be necessary for the media interests to be present at an early hour in the day but I do not see that as a matter that would effectively displace the presence of the media, should its representatives wish to be present.
79 The final argument related to an alleged degree of lack of cooperation on the part of the United States authorities. Mr Lange said there had been an "utter lack of cooperation" by those authorities. He referred in particular to the fact that the authorities would not permit Kwon to give evidence in early 2005 until after his commitments in another trial had concluded. Mr Lange argued that the authorities were in truth concerned that the witness's credibility might be impeached for the American trial were he to give AVL evidence at the earlier point in time. Secondly, Mr Lange referred to the fact that the US authorities had so far refused, or at least failed, to give statements from Kwon to the Commonwealth DPP even though these had been requested some considerable time ago by the defence. I am not satisfied that, at this stage, these last matters warrant the refusal of the application at least so far as it relates to the voir dire applications. I have only heard one side of the story and I have endeavoured to keep an open mind about whether the US authorities have acted unreasonably in relation to the matters the subject of complaint. I would hope that the prosecution would endeavour to intervene in the matter of statements from the witness Kwon and, if it is possible, assist the defence in that regard.
80 For all these reasons, I am not satisfied that making the orders and directions sought will have a substantial adverse effect on the accused's right to receive a fair hearing.