SZW, Re [2025] QSC 195 (20 August 2025)

• [1] The applicant is charged with domestic violence offences which include strangulation and assault of his wife. The trial is scheduled to commence in the District Court on 24 November 2025. The applicant's parents and brother live in India. The Crown proposes to call the applicant's parents as witnesses in the Crown's case. They are elderly, unwell and unable to travel to Brisbane for the trial. The applicant wishes to call evidence from his brother as part of the defence case. The brother cares for his elderly parents, and so it is difficult for him to travel to Brisbane for the trial.
• [2] There is no objection in principle to any of these witnesses giving evidence by audio-visual link at the trial. But there is an international law impediment. The Court is informed that India will not permit any Indian citizen within its territory to give evidence in Australian criminal proceedings without a formal request for assistance. Under s 10(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth) (Act), that formal request must be made by the Commonwealth Attorney-General.[1]
• [3] At the behest of the prosecutor, the Attorney-General has made a formal request to the appropriate authority in India to arrange for the parents to give evidence at the trial by audio-visual link.[2] Where such a request emanates from a defendant in a proceeding relating to a criminal matter, there is an additional step required - an application under s 39A of the Act to the Supreme Court[3] for a certificate that it would be in the interests of justice for the Attorney-General to make the request to the foreign country.
• [4] Section 39A(3) of the Act provides that, in deciding whether to issue a certificate, the Court must have regard to the following matters:

(a) whether the foreign country is likely to grant such a request made by the Attorney-General on behalf of the defendant;

(b) the extent to which the material (whether it is evidence, a document, an article or a thing) that the defendant seeks to obtain from the foreign country would not otherwise be available;

(c) whether the court hearing the proceeding would be likely to admit the material into evidence in the proceeding;

(d) the likely probative value of the material, if it were admitted into evidence in the proceeding, with respect to any issue likely to be determined in the proceeding;

(e) whether the defendant would be unfairly prejudiced if the material were not available to the court.

• [5] In deciding this application, the Court heard from and was assisted by evidence and submissions from the applicant and first respondent, as parties to the criminal proceeding, and the Attorney-General.[4]
• [6] On the evidence before the Court it is not clear whether, or not, India is likely to grant the request (s 39A(3)(a)). An officer within the International Cooperation Unit of the Attorney-General's department says that the department has not previously been involved in an application for a certificate under s 39A involving India. A request made in March 2025 to India's counterpart for an indication of its position has not yet been responded to. The present uncertainty as to how India may respond to the request does not support refusal of the certificate.[5]
• [7] The remaining factors concern the evidence the subject of the request, and the impact on the applicant if it were not available.
• [8] The primary evidence to support the charges against the applicant is the evidence of the complainant. The central issue at the trial will be whether the jury accepts the complainant's evidence as truthful and reliable. The complainant's evidence (which has now been pre-recorded) includes evidence of a conversation the complainant says she had with the brother, after she had made a complaint to the police. The complainant says she told the brother that the applicant had physically abused her. An outline of the brother's evidence suggests that he would give evidence confirming a conversation took place, that the complainant said the applicant spoke rudely to and yelled at her, but denying that she complained about any physical assaults.
• [9] When the application was filed, the legal representative for the applicant foreshadowed that the applicant wished to call his brother to give evidence of his good character as well as to prove a prior inconsistent statement made by the complainant.
• [10] As to whether the brother's evidence "would not otherwise be available" (s 39A(3)(b)), at the hearing of the application, counsel for the applicant accepted that, in so far as the proposed good character evidence is concerned, such evidence would "otherwise be available", because it could be given by the parents. The application was therefore pressed only in relation to the evidence concerning the conversation.
• [11] As to that, the Crown accepts that the brother's evidence is relevant, and likely to be admissible at the trial, because the credibility of the complainant is "inextricably involved with a fact in issue",[6] namely whether the applicant did the acts giving rise to the alleged offences.
• [12] In relation to whether the brother's evidence "would not otherwise be available", the Crown also accepts that only the brother can give evidence of the conversation, because there was no other party to it, apart from the complainant. There is no sworn evidence before the Court as to the brother's inability to travel to Brisbane to give evidence in person at the trial. However, counsel for the applicant submitted, on instructions, that it would be difficult, costly and inconvenient for the brother to do so, because he looks after his elderly parents in India, who are unable to travel. The Crown did not seek to challenge this contention and, for the purposes of this application, I accept it. The Crown also accepted that it would be more convenient and efficient for the brother to give evidence by audio-visual link in any event.[7]
• [13] Accordingly, I proceed on the basis that, if the certificate were not issued, it is possible the brother's evidence would not otherwise be available.
• [14] It is likely the trial court would admit the brother's evidence in relation to the conversation (s 39A(3)(c)). The Crown does not contend otherwise.
• [15] In terms of the likely probative value of the brother's evidence (s 39A(3)(d)), the evidence is relevant to the assessment of the credibility of the complainant which will be a central issue at the trial. The evidence therefore has real, as opposed to speculative, significance.[8] The weight of the brother's evidence, in terms of the impact it actually has on that assessment, will be a matter for the jury.
• [16] I accept the applicant would be unfairly prejudiced if he is not able to call evidence from his brother about the conversation (s 39A(3)(e)).[9] That follows from the conclusion that the evidence is relevant to a central issue at the trial.
• [17] The factors in s 39A(3) are not exhaustive. The court may also have regard to any other matter that it considers relevant (s 39A(4)). In this case, such matters include:

(a) The trial of the charges against the applicant was previously listed and did commence in December 2024. Both the applicants' parents, as well as the complainant's mother, were scheduled to give evidence at the trial, by audio-visual link. The trial was adjourned when the parties realised they had overlooked the requirements of the Treaty[10] and the Act in relation to this proposal. At the time the trial was adjourned, an order was made for the complainant's evidence to be given and videorecorded, a few days later.[11] It was during cross-examination of the complainant that she gave the evidence of her conversation with the brother, which is said to be inconsistent with the evidence he would give.

(b) In anticipation of the trial starting again in December this year, the Crown has sought the Attorney-General's assistance under the Act to enable the applicant's parents to give their evidence, from India, and the complainant's mother to give her evidence, from Italy, via audio-visual link. As a matter of fairness, it is in the interests of justice that the applicant, as the defendant to the criminal proceeding, be able to request the same assistance.[12]

(c) The Crown does not oppose the grant of the certificate, at least in so far as the brother's evidence of the conversation is concerned.

For completeness, I record that the Attorney-General provided helpful evidence in relation to the matter the subject of s 39A(3)(a), and submissions in relation to the legislative scheme, but did not otherwise take any positive, or negative, position in relation to the application.

• [18] The central consideration is whether it is in the interests of justice for the Attorney-General to make the request for mutual assistance (s 39A(1)). Having regard to the matters referred to in s 39A(3), and the other relevant matters just noted, I am satisfied that it is.
• [19] I will therefore issue a certificate, in a form to be confirmed with the parties, stating that it is in the interests of justice for the Attorney-General to make a request on behalf of the applicant to India under Part II of the Mutual Assistance in Criminal Matters Act 1987 for assistance to arrange for the applicant's brother to give evidence from India, through a video-link from Australia, in the trial of the charges against the applicant in the District Court at Queensland.

[1] The request is also governed by the Treaty between Australia and the Republic of India on Mutual Legal Assistance in Criminal Matters, set out in schedule 1 to the Mutual Assistance in Criminal Matters (India) Regulations 2010 (Cth).

[2] See s 12(1) and (3) of the Act; and article 2(3)(a) of the Treaty.

[5] Compare Ngo v Commonwealth Attorney-General [2024] NSWSC 1536 at [14] (in which there was similar uncertainty, and the certificate was granted) and R v TB (No 4) [2023] SASC 76 at [34]- [37] and [50]-[51] (in which the court was satisfied the other country was not likely to execute the mutual assistance request which was sought, and the certificate was refused). See also BA v Attorney-General [2017] VSC 259 at [55]- [56] and [68].

[6] Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 at [56] per McHugh J.

[7] See also Ngo v Commonwealth Attorney-General [2024] NSWSC 1536 at [16].

[8] See BA v Attorney-General [2017] VSC 259 at [54] and [77].

[9] See BA v Attorney-General [2017] VSC 259 at [57]- [58] and [77].

[10] See fn 1 above.

[11] Under s 21A(2) of the Evidence Act 1977 (Qld), which enables a court to order that the evidence of a "special witness" (which includes a person against whom domestic violence is alleged to have been committed by another person, who is to give evidence about the commission of an offence by the other person) be videorecorded, and that that the videorecorded evidence be viewed and heard in the proceeding (that is, the trial) instead of the direct testimony of the special witness.

[12] BA v Attorney-General [2017] VSC 259 at [49].