Regina v Lodhi

McDonald v Federal Commissioner of Taxation (2002) ATC 4271 at 4276 R v Wilkie & Ors [2005] NSWSC 794 per Howie J at para 65 R v Ngo (2001) 124 A Crim R 151 at (20) Regina v Wilkie, Burroughs & Mainprize [2005] NSWCCA 311 per Spigelman CJ Shayan Badraie (by his tutor Mohammad Badraie) v The Commonwealth of Australia & Ors per Johnson J 6 December 2005. CASES CITED : ASIC v Rich & Ors (2004) 49 ACSR 578 at (17-18) R v McHardie & Danielson (1983) 2 NSWLR 733 at 739 R v Park (1999) NSWSC 921 Australian Medical Imaging Pty Limited v Marconi Medical Systems of Australia Pty Limited (2001) 53 NSWLR 1, 5-6 (para 29) Moyette Pty Limited v Foundation Healthcare Limited (2003) FCA 116 per Conti J at para 10 McLean v Sydney Water Corporation (2001) NSWCA 122 at para 27 R v NZ [2005] NSWCCA 278 at (71FF)

COUNSEL : Mr R. Maidment SC - Crown/Applicant Mr P. Lange - Accused/Respondent

SOLICITORS : Commonwealth DPP - Crown/Applicant Michael Doughty - Accused/Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

1 HIS HONOUR: This is an application made by the prosecutor for an order that the evidence of certain witnesses both at trial and for the purposes of any examination on the voir dire be given by way of Audio Visual link ("AVL"). The application is made pursuant to Part 1AE - Video Link Evidence in Proceedings for Terrorism and Related Offences - of the Crimes Act (Commonwealth) 1914. 2 Section 15YV is in the following terms: 15YV (1) Application by prosecutor In a proceeding, the court must: (a) direct; or (b) by order, allow;

a witness to give evidence by video link if: (c) both: (i) the prosecutor applies for the direction or order; and (ii) the court is satisfied that the prosecutor gave the court reasonable notice of his or her intention to make the application; and (d) the witness is not a defendant in the proceeding; and

(e) the witness is available, or will reasonably be available, to give evidence by video link; and

(f) the facilities required by section 15YY are available or can reasonably be made available; unless the court is satisfied that giving the direction or making the order would have a substantial adverse effect on the right of a defendant in the proceeding to receive a fair hearing.

Application by defendant (2) In a proceeding, the court must: (a) direct; or

(c) both: (i) a defendant in the proceeding applies for the direction or order; and (ii) the court is satisfied that the defendant gave the court reasonable notice of his or her intention to make the application; and (d) the witness is not a defendant in the proceeding; and

(e) the witness is available, or will reasonably be available, to give evidence by video link; and

(f) the facilities required by section 15YY are available or can reasonably be made available;

unless the court is satisfied that it would be inconsistent with the interests of justice for the evidence to be given by video link.

substantial adverse effect means an effect that is adverse and not insubstantial, insignificant or trivial. 3 This new Part of the Crimes Act (Commonwealth) 1914, which came into force in November 2005, clearly applies to the present trial (s 15YU states that this Part applies to any proceedings for an offence against Part 5.3 of the Criminal Code. The accused is charged with offences under this Part). 4 There are a number of provisions of the new legislation, which require specific mention for the purposes of the arguments advanced on the hearing of the application. Section 15YW gives the Court power in making a direction or order under the section to require, when the witness is giving evidence by video link, that there be physically present at the place where evidence is given a person specified in the direction or order who may act as an observer. Such an observer may, if directed, give the Court a report concerning the person's observations in relation to the giving of evidence by the witness. The Court may make use of the report in determining whether evidence by the witness should or should not be admitted as evidence in the proceedings. 5 Section 15YY provides that a witness can evidence under a s 15YV direction or order only if the courtroom or other place where the court is sitting (the courtroom point) and the place where the evidence is to be given (the witness point) are equipped with video facilities. These must be such as to enable appropriate persons of the courtroom point to see and hear the witness giving the evidence; and enable appropriate persons at the witness point to see and hear appropriate persons at the courtroom point. The court determines who are, in each case, appropriate persons. 6 Section 15YZA provides that a person who gives evidence under a s 15YV direction or order is taken to give it at the courtroom or other place where the Court is sitting. This sub-section has effect for the purposes of laws relating to evidence, procedure, contempt of court and perjury. Section 15YZB enables an oath or affirmation to be sworn or made by a witness who is to give evidence under a s 15YV direction or order. This may be administered either by means of the video link in as nearly as practicable the same way as if the witness were to give evidence at the courtroom or other place where the court is sitting. Alternatively, an oath or affirmation may be administered on behalf of the court and as directed by it at the place where the witness is to give the evidence. This will be done by a person authorised by the Court. 7 Section 15YZD gives a right of appeal where the Court gives a direction or makes an order or where it refuses to do so. Section 15YX requires that there be an adjournment after a s 15YB direction or order or after the refusal to give a direction or make an order.

The context of the present application. 8 Faheem Khalid Lodhi (the accused) is charged with offences against s 101.4, 101.5 (two charges) and 101.6 of the Criminal Code Act 1995. These charges include: collecting documents connected with preparation for a terrorist act namely bombing part of the Australian electricity supply system; making a document connected with preparation for a terrorist act, namely the bombing of one or other of three Australian defence establishments; possessing a document containing information connected with preparation for a terrorist act by the detonation of an explosive or incendiary device or devices or by the use of a poison or poisons. In the case of each of these offences, the charge alleges that the accused knew of the connection between the physical acts he carried out and the alleged terrorist act in each case. The final charge is that the accused did an act in preparation for planning a terrorist act, namely causing death or serious physical harm to a person or persons unknown or causing serious damage to property unknown, by the detonation of an explosive or incendiary device or devices. The alleged act was the seeking of information concerning the availability of materials capable of being used for the manufacture of explosives. 9 The Crown case against the accused is essentially a circumstantial one. Apart from evidence relating to the accused's own actions and an examination of material found in his possession or control, the Crown case focuses on the relationship between the accused and one Willie Brigitte. This association relates to the period between March and October 2003. The Crown will argue that it is to be inferred from details of the relationship between the accused and Brigitte, and their common association with the telephone service of one "Sajid" in Pakistan, that their activities were connected with the preparation for one of a number of possible terrorist attacks in Australia. 10 In this context, the Crown will seek to prove that Brigitte, in about October 2001, had undertaken training at Paramilitary camps in Pakistan-occupied Kashmir operated by the terrorist organisation, Lashkar-e-Taiba ("LeT"). 11 The Crown will endeavour to prove that LeT is and was in October 2001 a terrorist organisation with a primary focus upon the removal of Indian Security Forces from India controlled Kashmir. It has been listed by the Commonwealth government as a prescribed terrorist organisation since November 2003. The Crown case will endeavour to establish that LeT provided Jihad education and military training to fundamentalists Muslim groups, as well as to individual foreigners, who would be expected, at the conclusion of their training, to return to their own countries and apply their training to fight against the oppression of Muslim communities and to establish a Muslim State in their countries through Jihad.

The evidence sought to be taken by AVL 12 The amended Notice of Motion seeks an order that evidence be given by way of AVL pursuant to s 15YV of the Crimes Act (Commonwealth) 1914. The application was made on 16 February 2006. It was supported by the affidavit of Helen Elizabeth Brown sworn 17 February 2006. Originally, the application related to the evidence of five witnesses. The defence has not opposed the making of orders in relation to two of those witnesses, at least for the purposes of the contemplated voir dire. I shall deal with those two witnesses in a separate decision. 13 These reasons focus upon the remaining three witnesses. They are Yong Ki Kwon, Wade Ammerman and Christopher Mamula. Mr Kwon is currently serving a sentence of imprisonment in the United States of America. The relevant authorities in the United States have consented to Kwon giving evidence in the proceeding by way of a AVL. The necessary technical facilities to allow the evidence to be given in that way are available at the Office of the US Department of Justice in Virginia where the witness will be transported for the purposes of giving evidence. 14 Messrs Ammerman and Mamula are each serving members of the Federal Bureau of Investigation and are stationed in Washington DC in the United States of America. Their superiors have consented to each of them giving evidence in the proceeding by way of AVL and the necessary technical facilities to allow the evidence to be given in that way are available at the Office of the US Department of Justice in Virginia where they will each attend for the purposes of giving evidence. 15 The evidence of Mr Kwon relates to two matters. First, it is likely that he will give evidence at trial regarding his activities in training camps conducted by Lashkar-e-Taiba in Pakistan. Secondly, on the voir dire (and at trial, unless the evidence be excluded) he will give evidence identifying Willie Brigitte as a person he trained with in Pakistan at Lashkar-e-Taiba training camps. The evidence of the two FBI agents will go to the method or process concerning Kwon's identification of Brigitte. 16 As I have already indicated, I will confine myself in this judgment to the issues which relate to the orders sought concerning Messrs, Kwon, Ammerman and Mamula. Mr Boulten SC, who appears on behalf of the accused, has opposed the making of the orders. Written submissions were filed by both parties and Mr Lange of junior counsel presented the oral submissions on behalf of the accused.

Submissions of the Crown 17 The Crown indicated that it sought orders allowing the evidence of three persons to be given on the voir dire by way of AVL. Should the Court, at the conclusion of the voir dire procedures, decline to exclude the existence relating to identification, the Crown would seek a further order that the testimony of each of the witnesses be similarly be given by video link at the trial. As I have already indicated, Mr Kwon, at trial, would give additional evidence of matters surrounding his training at LeT camps in Pakistan. 18 First, the Crown pointed out that the provisions of s 15YV are expressed in mandatory terms. The Court "must grant" the orders sought providing the matters in sub-ss (1)(c-f inclusive) are made out, unless the Court is satisfied that by so doing there would be a substantial adverse effect upon the accused's right to a fair trial. It was submitted that the accused bears the onus of proving that there will be a substantial adverse effect upon his right to a fair trial. 19 Secondly, by way of general introduction, the Crown submitted that evidence by video link is now being used with greater regularity and acceptance in proceedings generally (McDonald v Federal Commissioner of Taxation (2002) ATC 4271 at 4276 cited with approval in R v Wilkie (2005) NSWSC 794 per Howie J at para 65). 20 Thirdly, the Crown submitted that it had established each element of the criteria set out in sub-s (1)(c-f). All of these matters were established, it was submitted, by the evidence of Ms Helen Brown. 21 Fourthly, the Crown submitted that, to the extent it might be suggested by the accused that his right to a fair trial would be substantially adversely affected by the deprivation of a face to face confrontation with each of the witnesses, this would be insufficient, in the circumstances of the present matter, to cause the Court to decline to make the orders sought. 22 Finally, the Crown submitted that the Court had ample powers to appoint an observer under s 15YW; and a range of powers under ss 15YZA and 15YZB. In addition, s 15YZ made specific provision for appropriate directions to be placed before a jury where evidence was given by way of AVL.

Submissions on behalf of the accused - background matters 23 In order to understand the submissions made on behalf of the accused, it is necessary to say something of the background of the situation revealed in the committal proceedings, particularly in relation to the witness Kwon. These matters may be summarised as follows: -

(a) After completing his training in LeT Paramilitary camps in late 2001, Kwon set up a business in Karachi. The business did not succeed and Kwon ultimately went to live in Seoul, South Korea. There he worked for a time with his parents who ran a business in Seoul.

(b) Kwon was contacted by FBI Agent Ammerman who told him he would like to interview him back in the United States regarding his travels in Pakistan. Shortly after this, Kwon was visited by the FBI legal attaché who attended with Korean intelligence officers. Kwon told the attaché that he had been in Pakistan to attend a wedding and had stayed in Pakistan as a tourist. When he gave evidence by video link at committal, he accepted that he had deliberately misled the FBI at that time and told them deliberately false stories.

(c) Kwon made arrangements with Ammerman to fly to Honolulu in March 2003. He was there for three days and had several meetings with Agent Ammerman and others during that period. Again, at committal, he agreed that he told lies to these agents about his involvement with the LeT. He tried to minimise his involvement and tried to convince them that he had not been involved in LeT training. He also agreed that for many months he and "tailored" his story to the FBI to match what he understood the FBI knew at various times. If they were lacking in knowledge about a certain topic, he would not volunteer information on that topic.

(d) At the end of the three days discussion with Agent Ammerman in Honolulu, Kwon was served with a subpoena requiring him to appear before a grand jury in Virginia. He flew from Honolulu to Virginia. He was put up at a hotel a short distance from Washington DC until he was required to give evidence before the grand jury. He was further interviewed by the FBI Agents in the hotel room prior to giving evidence before the grand jury. He admitted at committal that he continued on the same track as previously: that is, if he knew that the FBI knew about something he would confirm it was true. If he thought they did not know about it, he would leave it out or positively tell lies to cover up the fact. He also agreed that when he gave evidence before the grand jury, he told lies on oath. Most significantly, he left out completely the fact that he had gone to Pakistan with a view to fighting American troops in Afghanistan. This was, he said, because he knew that the criminal consequences of such an activity would be very serious for him.

(e) He admitted that, at the urging of the FBI, he agreed to play a role against one of his co-accused in the same criminal enterprise. He rang a Mr Royer and pretended that he was ringing him from Korea. This was in an endeavour to tape record a confession that Royer had been involved in LeT activities. He agreed, in effect, that he knew that he could lie as long as he was working for the FBI.

(f) Kwon was cross-examined about the course of the criminal proceedings brought against him. He was initially charged with a number of very serious of offences. He entered into discussions through court appointed lawyers about the possibility of a plea agreement with the prosecution. After some hesitation on this score, it appears that a Mr Kromberg, a United States Attorney wrote a letter, which in due course led Kwon to enter into a plea agreement. The original charges contemplated against Kwon, if sustained, would have led to mandatory life imprisonment. As it happened, the plea agreement resulted in his receiving a sentence of eleven and a half years. At committal, Kwon agreed that giving evidence in the present trial against the accused was part of the assistance that was to be taken into account both in relation to his avoiding a "superseding indictment" - a process whereby more serious charges than the ones to which he pleaded guilty could be brought against him - and his receiving the benefit of a Rule 35 procedure. (This procedure, which in the case of Mr Kwon is presently underway, is likely to result in his being released from custody sometime between March and July this year). This early release would be likely to see him on parole or on licence. The terms of the release would require him to be brought back into custody if he failed to abide by the terms of his plea agreement, including the co-operation he had promised and the assistance he was required to give in relation to the present trial.

(g) In addition to the matters that I have recounted regarding the witness Mr Kwon, it is appropriate to outline some further circumstances, which were mentioned in the arguments advanced by Mr Lange. First, there was the fact that at the time of the original committal hearing, the United States authorities indicated that they would not allow Kwon to give evidence until after he had given evidence in a trial against his American Muslim spiritual advisor one Al-Timimi. Secondly, the American authorities, despite requests, have not to date provided the defence (or for that matter the prosecution) with copies of statements made by Mr Kwon to the FBI; thirdly, at the time of the video link in mid-2005, Mr Kromberg, Agent Ammerman and possibly Agent Mamula were present with Mr Kwon in the room from which he gave his video link evidence. It was suggested that the presence of the prosecutor Mr Kromberg and the two FBI agents was to enable the witness to seek directions and permission in relation to some aspects of his evidence in the video link process. Indeed, the Department of Justice building where the video link operated houses the office of Mr Kromberg.

Submissions of the accused 24 Mr Lange submitted, first, that the Court needed to examine carefully the circumstances described above in order to determine whether making the orders sought would have a substantial adverse effect on the right of the accused in these proceedings to receive a fair hearing. Mr Lange accepted that the onus is on the accused to demonstrate this situation. Counsel did not put in issue any of the matters relied on by the Crown in relation to the procedural requirements under s 15YV(1)(c-f inclusive). Counsel submitted, however, that the onus placed upon the defendant, by reason of the definition of the phrase "substantial adverse effect" in s 15YV(3) was not a heavy one. It was enough if the adverse effect was not "insignificant or trivial". 25 Secondly, he pointed to the fact that this application was made in the context of a criminal trial and that this itself raised the importance of an accused's right to cross-examine his accuser in person. Mr Lange referred to the observations of Dunford J in R v Ngo (2001) 124 A Crim R 151 at (20) where his Honour quoted R v McHardie & Danielson (1983) 2 NSWLR 733 at 739: - "The general rule is that a normal criminal jury trial provides for the presentation of the Crown case in the presence and hearing of the accused and this procedure is correctly described as a 'right'." 26 Thirdly, Mr Lange argued that the accused would be unfairly prejudiced by the order sought particularly in relation to the following matters: -

(a) The order would deny the accused an effective opportunity to test the credibility of the witness Kwon.

(b) Given the witness's plea to serious offences and his subsequent plea agreement with the US authorities, the witness's credibility was a central issue, particularly in the light of his admissions at committal as to his untruthfulness.

(c) The accused should be given every opportunity to assess the demeanour of the witness, since his evidence would, if admissible, go to a crucial element in the prosecution case, namely that the accused knew Willie Brigitte who is said to have been a terrorist. 27 These three matters were of special importance because of the evidence the Crown wished to adduce that Kwon identified Willie Brigitte in a photograph shown to him by Messrs Ammerman and Mamula. The Crown case, in addition, is that he identified the photo to at least one other person subsequently. It is these two identifications that are critically under attack and are to be the subject of an exclusion application by the defence in the near future. 28 Fourthly, Mr Lange argued that the witness Kwon may not be in a position to give evidence unconstrained by an external influence. In this regard, counsel pointed to the situation during the committal hearing where Kwon was in a position of significant influence by the United States prosecutor and the two FBI agents who were with him at the time he gave his evidence. It was argued that this would not be the case if he were giving viva voce evidence in a courtroom in Sydney. 29 Fifthly, Mr Lange argued that the Court had no effective way of enforcing the oath of affirmation, which the witness would be required to take. In this regard, Mr Lange relied upon a decision of Greg James J in R v Park (1999) NSWSC 921 where his Honour declined to order evidence by way of video link because of the absence of an effective means of enforcing the oath or affirmation taken. 30 Sixthly, Mr Lange argued that the taking of evidence by way of video link would mean that the Court would be required to sit at approximately 6am. This would effectively discourage the public, and indeed the media from attending the accused's trial. It would also have the effect of violating the principles of open justice. 31 Seventhly, counsel argued that the prosecution would not be unfairly prejudiced by the denial of the orders sought since it could acquire the evidence by a different means. In this regard, Mr Lange referred to the observations of Palmer J in Australian Medical Imaging Pty Limited v Marconi Medical Systems of Australia Pty Limited (2001) 53 NSWLR 1, 5-6 at (para 29): - "In my view, until the rules of court are amended expressly to provide otherwise, it should be assumed that an overseas witness required for cross-examination in a trial will attend the court in person to give evidence and that evidence by video link will be allowed only upon application supported by evidence showing a good reason for the witness's non attendance". 32 This proposition was said to indicate "the trend of authority" (Moyette Pty Limited v Foundation Healthcare Limited (2003) FCA 116 per Conti J at para 10). 33 Mr Lange argued that, beyond the fact that the witness Kwon was in custody, there was no real reason advanced why he could not be required to attend Australia for the purpose of giving evidence. Reference was made to two matters. First, there existed a Treaty between the government of Australia and the government of the United States of America for mutual assistance in criminal matters. This enabled the transfer of witnesses between the two countries where those witnesses were in custody. Secondly, reference was made to s 16(1) of the Mutual Assistance in Criminal Matters Act 1987. This legislation enabled Australia to request that a foreign prisoner, capable of giving evidence relevant to criminal proceedings, be removed to Australia for that purpose. There was no evidence to suggest any attempts had been made under either of the Treaty or Act to bring Kwon to Australia for the purposes of either the voir dire or the trial. 34 Eighthly, Mr Lange pointed out that there had been no evidence put before the Court to suggest that there were cost factors that made it impracticable for the witnesses to be brought to Australia. Indeed, even if there had been such evidence put forward, Mr Lange argued that costs were, at best, a subordinate consideration. 35 Finally, Mr Lange argued that if the Court is minded to grant the orders sought for examination of the three witnesses by video link, the Court should include an order providing for an observer to ensure that the evidence of each witness is given free of any compulsion. This was especially so in the case eof Kwon. Moreover, counsel argued that it would not be appropriate for the video link evidence to be taken from the Department of Justice in Virginia. Some more neutral territory should be selected.

Resolution of the issues - the orders should be made 36 I propose to make the orders sought for the three witnesses whose evidence by AVL is opposed. At this stage, however, I propose to limit the orders to the taking of evidence in the pre-trial applications. I do so for essentially practical reasons. First, if the evidence of Kwon on the identification issue is excluded, this may have practical consequences for the trial and its conduct. Secondly, the FBI agents may be available to give evidence personally at trial, that is, if their evidence remains a live issue for trial purposes. Thirdly, if Kwon is released from custody towards the end of March 2006, this may have some consequences if he is to give evidence. Fourthly, the Crown may wish to seek further information, through the Attorney-General, as to the views on a number of these matters on the part of the US authorities. I should make it clear, however, that although the issue of video link usage for these witnesses at trial has not as yet been finally determined and will await a renewed application by the Crown, I will not confine myself, in stating my reasons, to the pre-trial situation. I will, where appropriate, express views on the arguments that have arisen, for example, in relation to any difficulties the jury might have in assessing demeanour. Those are not necessarily final views on the particular issues that may arise for submission after the pre-trial evidence has been taken. These matters may require further ventilation. But I consider it appropriate that the parties should have the benefit of my preliminary views on such matters at this stage.

Generally 37 It may be convenient if I begin by addressing a number of general issues. The first is a recognition of the undisputed fact, as I see it, that the use of video link facilities for taking the evidence of witnesses in other States and countries is now much broadly accepted than it once was. The fear that the use of modern technology in placing overseas evidence before, for example, a court in New South Wales is or might be an intrinsically inferior method has, to a large degree, dissipated. 38 For example, in McDonald v Federal Commissioner of Taxation (supra) at 4276 Finn J noted 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". 39 Again, in Regina v Wilkie, Burroughs and Mainprize [2005] NSWCCA 311, Spigelman CJ, in addressing the constitutional validity of the use of video link evidence in a Commonwealth criminal trial, said at (25): "Video link evidence is a precise, accurate and instantaneous reflection of the physical image and of the words of the witness. It is presented in the court and, most relevantly, to the jury by means of audio visual images occurring in the courtroom. (See also Bell Group Limited (in Liq) v Westpac Banking Corporation (2004) 208 ALR 491 at (34-40)). In my opinion the audio visual replication of the evidence, by equipment physically located in the State and directly observable by a judge, jury and the public in the State, is sufficient to answer the description of a trial 'held in the State'." 40 In May 2004, Austin J made a very thorough analysis of the trends of decisions up to that time. There were, Austin J observed, generally two approaches exhibited by the observations in the cases he analysed. One line of cases generally favoured the use of audio visual evidence whereas the other was much more cautious in relation to the issue. (ASIC v Rich & Ors (2004) 49 ACSR 578 at (17-18). Since most of the relevant authorities were noted in detail by Austin J, there is little purpose in my repeating them here. Austin J, however, noted that apart from dealing with obvious practical matters (comparative costs and the difficulty created by differences in time zones), the cases touched upon a number of recurring themes: the appropriateness of audio visual facilities for centrally importance evidence, the assessment of credit where evidence is given by audio visual link, the difficulties raised by the use of documents for cross-examination and difficulties posed by use of audio visual facilities where the cross-examination was likely to be lengthy. Although his Honour noted difficulties in all these areas, he concluded generally that none of the difficulties, of themselves, were necessarily sufficient to persuade the Court against using audio visual facilities. 41 In more recent times, there have been further decisions in New South Wales. In a very comprehensive decision, Howie J made orders for the taking of overseas evidence by way of video link facilities in a complex white collar criminal trial (R v Wilkie & Ors [2005] NSWSC 794). As I have earlier noted, there was an appeal to the Court of Criminal Appeal in relation to his Honour's finding as to the constitutional validity of the use of video link evidence in the trial. There was, in fact, no appeal from that part of his Honour's decision in which he had exercised his general discretion to make the relevant orders, in particular after consideration as to whether the making of the orders would result in unfairness to the accused. 42 On 6 December 2005 Johnson J, in the Common Law Division of the Court, made orders for the taking of overseas evidence by video link facilities in a civil damages claim (Shayan Badraie (by his tutor Mohammad Badraie v The Commonwealth of Australia & Ors. 43 Each of these cases was concerned with s 5B of Evidence (Audio and Audio Visual Links) Act 1998. In each case this legislation was the statutory foundation for the receipt of evidence in New South Wales for witnesses giving evidence by audio visual link from a place outside New South Wales including a place outside of Australia. 44 Each of the decisions reflected, after careful and detailed consideration, the more liberal approach reflected in the first line of authority noted by Austin J in ASIC v Rich. 45 One of the authorities principally relied upon by the accused in the present argument (as I have set out earlier) is the decision in Australian Medical Imaging Pty Limited v Marconi. In that case, at para 29, it will be recalled Palmer J had suggested that there was an assumption that an overseas witness should attend to give evidence in this State unless there was satisfactory evidence showing a good reason for the witness' non-attendance. In such a situation, the Court might then consider using AVL facilities. 46 If that was a permissible view of the general situation as it stood in July 2001, and I doubt it was, it is no longer an acceptable proposition. Quite apart from changes in attitude, which have been reflected in more recently decided cases, there is the plain intent demonstrated by the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) which came into operation on 5 March 1999. Relevantly for the purposes of the application I am considering, there are now the provisions of Part 1AE of the Crimes Act (Commonwealth) 1914 which I have set out at length earlier in this decision. Each of these pieces of legislation effects a significant change to the statutory landscape against which contemporary attitudes to video link facilities should now be measured.

The content of s 15YV of the Commonwealth Crimes Act 1914 47 The second general matter I wish to consider is the concept of a fair trial. Before doing so I will briefly examine the operations of s 15YV in the context of the present application. I will confine this examination to that aspect of the legislation dealing with an application by a prosecutor for an AVL direction or order. Different statutory considerations arise where an application is made by a defendant. (See s 15YV(2)). 48 At the outset, it is necessary to note that s 15YV is cast in mandatory language ("the court must"). A proper reading of the section makes it clear, however, that the court retains a general discretion as to whether it will direct or make an order in accordance with the section. Provided the matters set out in 15YV(i)(c-f) are satisfied, the court must make the order unless it is satisfied that giving the direction or making the order would have a substantial adverse effect on the right of a defendant in the proceeding to receive a fair hearing. 49 In the present matter, there is no doubt that the application has been made by the prosecutor and that reasonable notice of intention to make the application has been given. There was an application originally made last year under the New South Wales legislation but, in all the circumstances, the amended application before the Court (February 2006) may be taken to have picked up the previous application so as to satisfy the aspect of reasonable notice. No submission was made to the contrary by or on behalf of the accused. 50 The other preliminary matters in s 15YV(1) are established: none of the witnesses to called is a defendant in the proceedings; the evidence of Ms Brown satisfies me that each witness is available to give evidence by video link and that, at least at a prima facie level, the facilities requires by 15YY are available or can reasonably be made available. So far as I can ascertain, there was no problem at committal when the witness Kwon gave evidence via video link, at least so far as the matters with which s 15YY is concerned. 51 Those matters having been satisfied, it is necessary for the Court to turn its attention to the substantial matter which has been argued in this application. This is a consideration as to whether making the order will appropriately in accordance with the statute, impact on the accused's rights to receive a fair hearing. A "substantial adverse effect" means an effect that is adverse and not insubstantial, insignificant or trivial (15YB(3)). I agree with the submissions of Mr Lange that, properly construed, the expression "substantial adverse effect" does not mean that a heavy burden is placed on the accused. I should repeat that Mr Lange accepted, during the course of his submissions, that the onus of demonstrating the matter required to warrant refusal of the application in the present matter rests upon the accused. 52 What then is involved in determining whether the Court is satisfied that the making of the order would have a "substantial adverse effect" on the right of a defendant to receive a fair hearing? It is plain, in my view, that more is involved than the ascertainment of a simple objective fact or facts. 53 In Wilkie, Howie J, although he was dealing with the New South Wales legislation, commented on the concept of a fair trial. At paras 54 to 57, his Honour said: - "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. 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. So in Jago Mason CJ stated at 33: The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton (CLR at 102, 106); Sang, at 437 Carver v Attorney-General (NSW) (1987) 29 A Crim R 24 at 31, 32 At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged……….. True it is that the Court was there concerned with the exercise of a discretion to stay a prosecution but that was a remedy, which was being considered in order to avoid a trial that was said to be unfair by reason of delay. If the trial was relevantly unfair, the Court could not permit the trial to proceed, whatever other interests there might have been in the continuation of the prosecution. The balancing exercise was undertaken in order to determine whether the trial would be unfair and not simply in determining whether the unfairness should be addressed by the exercise of the court's power to stay the proceeding." 54 The Court in Ngo had to determine whether the direction that the evidence be given by video link resulted in an unfair trial and did so by considering and balancing issues rather than simply deciding whether the making of the direction produced any unfairness to the accused. The issue in Ngo was not merely whether AVL facilities (within New South Wales) should be used: the critical point was whether the fact that the accused was to be prevented from observing the witnesses while they gave their evidence resulted in an unfair trial. The Court noted that, by making such a direction, there must be involved an element of unfairness to an accused because he or she is thereby deprived of a face to face confrontation with the witness. The Court considered however, that the statutory provision could not mean "any unfairness, however small". The Court said (at 108):- "The Court must consider the degree and effect of the unfairness. In a criminal trial, the best measure is whether the making of a direction will cause a trial to be an unfair one to the accused. An accused person has the fundamental right to a fair trial. A direction should not be made if it would mean that an accused could not have a fair trial". 55 The Court then undertook the task by considering and balancing a number of competing interests including the protection of the witnesses. 56 Recently, the House of Lords considered the concept of "a fair trial" in R v H; R v C (2004) 2 AC. This was in the context of Article 6 of the European Convention and its application in the European Court. In that matter, the opinion of the Appellate Committee was delivered by Lord Bingham. At paras 10 to 12 his Lordship said: - " A fair trial As the House declared in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 68, and recently repeated in Attorney General's Reference (No 2 of 2001) UKHL 68, [2004] 2 WLR 1 , para 13, it is "axiomatic" "that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all". Article 6 of the European Convention requires that the trial process, viewed as a whole, must be fair. Any answer given to the questions raised by these appeals must be governed by that cardinal and overriding requirement.

Fairness is a constantly evolving concept. Hawkins J ( Memoirs , chapter IV) recalled a defendant convicted of theft at the Old Bailey in the 1840s after a trial which lasted 2 minutes 53 seconds, including a terse jury direction: "Gentlemen, I suppose you have no doubt? I have none". Until 1898 a defendant could not generally testify on his own behalf. Such practices could not bear scrutiny today. But it is important to recognise that standards and perceptions of fairness may change, not only from one century to another but also, sometimes, from one decade to another.

While the focus of article 6 of the Convention is on the right of a criminal defendant to a fair trial, it is a right to be exercised within the framework of the administration of the criminal law: as Lord Steyn pointed out in Attorney-General's Reference (No 3 of 1999) [2001] 2 AC 91, 118,

"The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public".

The European Court has repeatedly recognised that individual rights should not be treated as if enjoyed in a vacuum: Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52. As Lord Hope of Craighead pointed out in Montgomery v HM Advocate 1 AC 641, 673:

"the rule of law lies at the heart of the Convention. It is not the purpose of article 6 to make it impracticable to bring those who are accused of crime to justice. The approach which the Strasbourg court has taken to the question whether there are sufficient safeguards recognises this fact"." 57 These authorities demonstrate that a court, in determining whether a particular procedure will put at risk a fair trial, is required, having regard to the particular circumstances, to consider and balance differing interests. It is only when this is done that the Court may properly determine the issue.

A fair hearing - individual considerations 58 It is convenient, first to consider that aspect of the argument that relied upon the proposition that the prosecution had not advanced a good reason for the relevant evidence to be taken by video link rather than by personal attendance of the witnesses. It will be recalled that this argument focussed upon the concept of "mutual assistance" between the United States of America and Australia both under Treaty and by legislation. 59 The facts in relation to this aspect of the matter are not in dispute. In the case of Kwon, it is possible to infer that the fact that he is serving a sentence of imprisonment in the United States of America is plainly related to the proposal that he give evidence by video link. Again, although there is no specific evidence on the point, it is apparent that Messrs Ammerman and Mamula are each responsible serving members of the Federal Bureau of Investigation and are normally stationed in Washington DC in the United States of America. Again, it is possible to infer that this situation is relevant to the proposal that their evidence, at least in the preliminary hearings, be received by way of video link. 60 It is true, as Mr Lange submitted, that it would have been open to the prosecution, through the Australian government agencies, to enquire whether "mutual assistance" concepts in both the Treaty and the legislation might have been activated. It is also true that, plainly enough, they have not been so activated. On the other hand, it is easy to infer, as I have said, that, especially in the case of Kwon it would be unlikely, at this stage, that the United States authorities would be willing to allow him out of the jurisdiction. 61 Whether this last matter be a permissible inference for the Court to draw in all the circumstances, I am nevertheless, not persuaded that, in terms of the Crimes Act (Commonwealth) 1914, there is any obligation on the prosecution to demonstrate that a good reason has been shown for the evidence being taken by video link rather than by personal attendance. It seems to me that there is a clear legislative intention in Part 1AE of the Crimes Act (Commonwealth) 1914 that orders or directions should be made for the taking of evidence by way of video link, if it is otherwise an appropriate discretionary exercise to do so, quite apart from considerations of convenience, cost and the like. I do not suggest that such matters can never be relevant but they would not be, generally speaking, determinative of the issues posed by the present legislation. If the legislation had wished to erect such a statutory hurdle, it could have easily done so. The plain fact is that it has not imposed any burden of this kind on the prosecution where an AVL order or direction is sought. 62 I turn now to consider the three arguments advanced on behalf of the accused that relate to the assessment of the credibility of the witness Kwon. I accept that the evidence of the witness Kwon on the identification issue is an important part of the Crown case. I accept as well that a substantial attack will be made on the credit of Kwon. In addition, I anticipate that, quite apart from credibility, the reliability of Kwon will be a live issue and that warnings may be sought at trial, if his evidence is not excluded, that will require the jury to exercise considerable care before accepting his evidence. These propositions emerge from the witness's plea to serious offences on 25 August 2003; his subsequent plea agreement with the United States authorities and the various matters I have outlined in considerable detail when noting the circumstances of the witness Kwon as a background to the submissions made on behalf of the accused. 63 It must be said that, as matters stand, Mr Boulten SC will have a considerable armoury of weapons with which to besiege Kwon's credibility. 64 The issue that must be examined, however, is whether the physical absence of the witness from the courtroom will, in the circumstances I have outlined, lead to unfairness. As the authorities I have referred to note the concept of a fair trial is not to be equated with a perfect trial. This is so in both criminal and civil matters (McLean v Sydney Water Corporation (2001) NSWCA 122 at para 27). The absence of the witness from the courtroom might however be said to infringe the general rule referred to by Dunford J in R v Ngo at 155 (20). This general rule, of course, had been mentioned in R v McHardie & Danielson in the context of a trial where one of the accused had escaped from prison on the fourteenth day of the trial and was no longer present for the remainder of the trial. Nevertheless, it may be said that the fact that the witness is not physically present in the courtroom, and that his evidence is given by way of transmitted images and words, represents at least in theory a derogation from the general rule. 65 I do not accept, however, that the demeanour of a witness cannot be satisfactorily assessed via the use of AVL facilities. For example, it is the common experience of New South Wales Criminal Courts that juries are required to assess the evidence of complainants in child sexual assault cases where evidence has been given by AVL means: Wilkie para 11; R v NZ [2005] NSWCCA 278 at (71FF). My own experience as a trial judge (if I may be permitted to refer to it) is that juries have no difficulty in examining issues such as credibility and demeanour where evidence is given by way of a video link. Moreover, judicial experience in this State generally endorses the notion that the collective ability of a jury to determine issues of credit, even in difficult cases, is a robust and capable one. 66 In Wilkie, Howie J said at para 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.

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.

The orders 81 I propose to make orders in relation to the three witnesses as I have indicated. I am not persuaded at this stage that the Department of Justice building is an inappropriate venue for the witnesses to give evidence provided that the other safeguards I have discussed during these reasons are implemented. I direct the parties to bring in Short Minutes of Order to reflect the orders I have contemplated making. This will require the parties to discuss and make decisions regarding the identity of an observer under s 15YW and otherwise to prepare draft directions to implement the reasons I have given.

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