REGINA v WILKIE, BURROUGHS & MAINPRIZE [2005] NSWCCA 311 | Case summary

Monday 29 August 2005 REGINA v Daniel WILKIE REGINA v Stephen BURROUGHS REGINA v Timothy Maxwell MAINPRIZE Judgment 1 SPIGELMAN CJ: The issue before the Court is whether the Commonwealth Constitution permits evidence to be taken in a trial on indictment for a Commonwealth offence from a witness who is physically situate overseas and gives evidence by means of an audio visual link. 2 Howie J exercised the discretion of the Court under s5B of the Evidence (Audio and Audio Visual Links) Act 1998 to permit evidence in this form in a case in which the Applicants in this Court stand accused of offences involving contravention of the Corporations Act 2001 (Cth). Leave is required as his Honour's judgment is interlocutory. The only issue that arises is whether or not this mode of proceeding is constitutionally permissible. 3 Section 80 of the Constitution provides: "80 The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes." 4 The Applicants expressly abjured any submission that the use of video link evidence infringes an essential element of a criminal trial. Accordingly, no issue arises of the character considered in such cases as Cheatle v The Queen (1993) 177 CLR 541; Brownlee v The Queen (2001) 207 CLR 278 and R v Ronen [2004] NSWCCA 176. 5 The narrow issue is whether the taking of evidence by means of an audio visual link from a witness physically situate overseas contravenes the requirement that every "trial on indictment" for an offence against the law of the Commonwealth "shall be held in the State where the offence was committed". The focus of the Applicants' submissions is on the words "in the State" in s80. 6 Under s68(1) of the Judiciary Act 1903 (Cth) State laws on procedure for trial apply "subject to this section". Under s68(2) State courts have jurisdiction for the trial and conviction on indictment of persons charged with Commonwealth offences "subject to section 80 of the Constitution". Under s79 of the Judiciary Act 1903 (Cth) laws of the State relating to procedure and evidence apply to a trial for a Commonwealth offence "except as otherwise provided by the Constitution". Accordingly, if the Applicants' point is a good point, s5B of the Evidence (Audio and Audio Visual Links) Act 1998 would not be picked up by s79 and/or would not apply under s68 of the Judiciary Act. (See Brown v The Queen (1986) 160 CLR 171 at 200-201, 206 and 217-218.) Alternatively, s5B would be read down by the application of s31 of the Interpretation Act 1987 so as not to exceed the powers of the NSW Parliament. (See Cheatle supra at 562-563.) 7 The Applicants advance five propositions:

5 The conclusion is that the answer to that question must be "No". 8 The Applicants submit that no question of fact and degree arises. The issue of whether or not a trial was held "in the State" is capable of a simple yes or no answer. They submit that oral evidence is adduced at a trial at the point where it is given. All of the evidence, accordingly, must be both given and received "in the State". The audio visual evidence proposed in the present case would not be so given and received. 9 Discretionary considerations relevant to the fairness of the trial have been determined adversely to the Applicants by Howie J. This is not challenged. The constitutional issue that is sought to be agitated has a different quality. Fair trial considerations impinge on the exercise of the discretion to make an order under s5B. However, there has been no attempt to constitutionalise the right to a trial by jury under s80 as constituting a fair trial. 10 There is no relevant authority. Such issues have arisen in the United States of America, under that part of the Sixth Amendment called the "confrontation clause", which confers a right on an accused to "be confronted with the witnesses against him". United States case law suggests that evidence by video link does not violate the confrontation clause right, at least where denial of confrontation furthers another public policy and reliability of testimony is otherwise assured. (See Maryland v Craig, 497 US 836 (1990) at 850; United States v Yates, 391 F 3d 1182 (11th Cir, 2004) at [2]-[4]; cf United States v Gigante, 166 F 3d 75 (2nd Cir, 1999) at [7]; State of Minnesota v Sewell, 595 NW 2d 207 (Minn, 1999) at [4]-[7] and see United States v Baker, 45 F 3d 837 (4th Cir, 1995); Richard Douglas "Live Video Testimony: New Tool for International Criminal Assistance" (2000) United States Attorney's Bulletin 25; Fern L Kletter, "Constitutional and Statutory Validity of Judicial Videoconferencing" 115 ALR 5th 509 esp at 537-538.) By majority, the Supreme Court, exercising a statutory power, refused, on the basis of the confrontation clause, to approve a proposed amendment to the Federal Rules of Criminal Procedure which would have made video link evidence generally available (207 FRD 89, April 29, 2002). 11 The United States equivalent of the words under consideration in the present case is not found in the Bill of Rights but in the requirement under Article III s2 cl 3 that trials "shall be held in the State where the said crimes shall have been committed", called the "venue clause". I am unaware of any consideration of video link testimony in relation to this provision. Perhaps that is because of the existence of the confrontation clause alternative. 12 The historical origins of Article III s2 cl 3 lay in the British practice of transporting Americans to Britain for trial because local juries would not convict. (See Drew L Kershen "Vicinage" (1976) 29 Oklahoma L Rev 801 at 805-807; Todd Lloyd "Stretching Venue Beyond Constitutional Recognition" (2000) 90 J Crim L & Criminology 951 at 953-954.) The focus of concern was on ensuring a fair trial for an accused. (Kershen supra at 808-811; United States v Johnson, 323 US 273 (1944) at 275-276.) The Australian Constitution did not have such dramatic origins. Indeed, our experience with the flow of prisoners was in the opposite direction. Although s80 was in part inspired by Article III s2 cl 3, its object was different. 13 Section 80 manifests the significance that has always attached to ensuring the venue of a criminal trial is the community where the crime was committed. In part this reflects Lord Halsbury's aphorism that crime is local and jurisdiction belongs to the area where the crime was committed. (Macleod v Attorney-General (NSW) [1891] AC 455 at 458.) Gleeson CJ has described this assertion as "dogmatic". (See Lipohar v The Queen (2000) 200 CLR 485 at [15] and see [91].) I have described it as "glib". (R v Porter (2004) 61 NSWLR 384 at [19].) 14 However, as Holmes JA said in R v Cattell (1967) 86 WN Pt 1 391 at 395-396: "Though the principle has always been that an indictment for crime must be tried by a jury of the place in which it is alleged that the offence has been committed and before a court having jurisdiction therein, this rule does not rest on the principle that criminal jurisdiction is territorial but upon the history of the development of trial in pais." 15 Trial in pais (in the country) was sometimes expressed as trial per pais (by the country), that is, by jury. The origins of the local link lie in the origins of the grand jury which acted on its own local knowledge to find an indictment and of the petty jury of trial which would also act on its own knowledge. (See James FitzJames Stephen, A History of the Criminal Law of England (1883) vol 1 at 253-254, 258-260, 276-278.) 16 Thereafter, the system of trial by jury developed with an emphasis on the significance of local people serving on the jury and an acknowledgement of the public interest in ensuring that the community whose peace has been disturbed can directly observe justice being done. (For a recent statement of the principles see Johnson v The Queen [2002] WASCA 78 at [9].) 17 This common law background is the basis of the relevant words in s80. The principle is not concerned with the physical location of a witness, as distinct from the point of reception of the evidence. It is the reception that is critical. In principle, the position is the same as other longstanding ways of tendering evidence not "given" at a trial, e.g. pursuant to a letter of request, as evidence on commission or by tender of the deposition of a witness who has died since committal or was otherwise unable to attend. (See also Director of Public Prosecutions v Alexander (1993) 33 NSWLR 482 at 488-491.) 18 Indeed, counsel for the Applicants accepted that the constitutional guarantee would not be breached if an audio visual recording of a witness taken when overseas were tendered at the trial and played to the jury. Reliance was sought to be placed on rules of court and case law on when a cause of action arises within the jurisdiction. I find no assistance from this line of authority. 19 The framers of the Constitution could not have envisaged evidence being given in the manner now proposed. Nevertheless, the Constitution is, by its nature, a document that was intended to long endure and to do so through technological changes. As Professor Paul Freund once remarked to a class: "We ought not read the Constitution like a last will and testament lest it become one." (Quoted in Eugene W Hickok Jnr The Bill of Rights: Original Meaning and Current Understanding University Press of Virginia, Charlottesville, 1991, p21.) 20 This approach to constitutional interpretation is an application of the well established principle that the interpretation of a document must be determined by the nature of that document. A constitution, as an instrument of government, must be interpreted so that it is able to adapt to changing circumstances. (See Attorney-General (NSW) v Brewery Employees Union of NSW (1908) 6 CLR 469 at 611-612 and the frequently cited passage in Jumbunna Coal Mine NL v Victorian Coalminers' Association (1908) 6 CLR 309 at 367-368.) Relevantly to s80, Gleeson CJ and McHugh J said in Brownlee supra at [12], that the incidents of jury trial procedure were "never immutable" and were "constantly changing". 21 In my opinion this principle of constitutional interpretation, when applied to the words "held in the State", requires a flexibility of approach. There are several elements which, in combination, lead to the rejection of the Applicants' case on s80. 22 First, the text - "every such trial" - is a reference to a trial by jury. It is essential that the jury be drawn from persons in the State. The purpose of the provision, so expressed, appears to me to be directed, primarily if not only, to the identity of the jurors. As applied to the community of the location of the crime, this is a manifestation of the proposition expressed in Cheatle at 560: "The relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community." 23 Secondly, a "trial" can be accurately described as being "held in the State" even if some elements of the trial occur elsewhere. The fact that a witness, albeit a critical witness, is not physically present in the State, is not such as to deprive a trial of that essential quality. In my view, contrary to the basic submission of the Applicants, "trial" does not mean each and every aspect of the trial being physically located in the State. 24 Thirdly, even in 1900 there were circumstances, as noted above, in which testimonial evidence which was not given in front of a jury was received into evidence in a criminal jury trial. 25 Fourthly, 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 Ltd (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 judge, jury and the public in the State, is sufficient to answer the description of a trial "held in the State". 26 His Honour was plainly right. In my opinion, leave should be refused. 27 IPP JA: I agree. 28 ADAMS J: I also agree. 29 SPIGELMAN CJ: The order of the Court is leave is refused. **********

REGINA v WILKIE, BURROUGHS & MAINPRIZE

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