The Queen v Baker [2021] NTSC 1

Misuse of Drugs Act 1990 (NT) s 5(1), s 8(1)

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152, R v Goldman [2004] VSC 165; (2004) 148 A Crim R 40, R v Kim [1998] VSC 215; (1998) 104 A Crim R 233, R v Sutton [2015] QSC 110; (2015) 250 A Crim R 457, Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 126, referred to.

The Queen v Baker [2021] NTSC 1

• [1] The accused is charged on indictment with supplying a commercial quantity of cannabis plant material contrary to s 5(1) of the Misuse of Drugs Act 1990 (NT) ('MODA'), and with possessing $32,100 in cash being property obtained from the supply of cannabis plant material contrary to s 8(1) of the MODA. The trial is listed to commence on 18 January 2021 and to last for nine days.
• [2] The Crown alleges that the accused and Steven Tipungwuti-Peris ('the co-accused') were in a relationship, residing in Darwin. The accused grew up in Galiwinku on Elcho Island. Between January 2017 and December 2018, the accused and the co-accused sourced commercial quantities of cannabis and arranged for it to be sent, by various means, to Galiwinku for supply. From time to time, they would travel to Galiwinku, stay there and supply cannabis themselves from the house they stayed in. When they were not in Galiwinku, they would also have others supply cannabis in the community on their behalf. If they were in Galiwinku, the accused would take the cash from the supply of cannabis back to Darwin with her on her person. If they were not in Galiwinku, the accused and the co-accused used various means to obtain the proceeds from the sale of the cannabis. On 22 May 2018, the accused and the co-accused travelled from Galiwinku to Jabiru by charter plane, and then were driven from Jabiru to Darwin. The vehicle was stopped and searched by Police and the $32,100 in cash, the subject of Count 2 was located in a sports bag belonging to the accused.
• [3] The Crown made an application for a direction under s 49E of the Evidence Act 1939 (NT) ('Evidence Act') for sixteen of the thirty-two Crown witnesses to give evidence to the Court by audio-visual link ('AVL') from Galiwinku on Elcho Island. Those witnesses all reside in Galiwinku or on Elcho Island. Almost all of them are expected to give evidence about deposits of cash from the sale of cannabis made at the direction of the accused and the co-accused into theirs or other person's bank accounts and the withdrawal of cash from those accounts by or for the accused and the co-accused. In addition, five of the sixteen witnesses are expected to give evidence about either purchasing cannabis from the accused and/or the co-accused or seeing them supply cannabis in the community. Further, one of the sixteen witnesses is expected to give evidence about themselves supplying cannabis in the community for the accused and the co-accused.
• [4] In addition, the Crown made application for two further witnesses to give evidence by AVL from Lake Evella/Gapuwiyak. Those witnesses are expected to give evidence about withdrawing money deposited into their account and giving it to the accused.
• [5] Finally, the Crown made application for Detective Sergeant ('DS') Bradshaw to give evidence by AVL from Katherine.
• [6] Other than in relation to DS Bradshaw's evidence, the application was opposed by the accused.
• [7] I heard the application on 8 January 2021. At the conclusion of argument, I directed that, pursuant to s 49F of the Evidence Act, the eighteen lay witnesses identified by the Crown, and DS Bradshaw, may give their evidence by AVL from Galiwinku, Gapuwiyak and Katherine respectively. These are my reasons for doing so.

• [8] The Crown made the application because of the large number of witnesses who reside on Elcho Island and who will require an interpreter to give their evidence. The estimated cost of travel from Galiwinku to, and accommodation in, Darwin for fifteen people for four days is $17,745.20. The cost is likely to be greater because of the need to include additional family members (such as children) and carers of the witnesses.
• [9] In addition, the Crown says interpreters are generally more available in community than in Darwin, so allowing these witnesses to give evidence in Galiwinku enhances the availability of interpreters for the evidence (because it avoids the inconvenience to them of travelling to Darwin) and saves the costs of bringing those interpreters to Darwin for that evidence.
• [10] The Crown also indicated that, if the application was refused, the Crown would be making an application for the Court to consider some of these witnesses as "vulnerable witnesses" within s 21AB of the Evidence Act and for them to give their evidence from the vulnerable witness room rather than in person. The basis of the application would be that the accused had exerted cultural pressure arising from familial and kinship relationships with those witnesses to require them to assist her and the co-accused in the supply of cannabis and/or in relation to the use of theirs or other people's bank accounts. In other words, at least some of the witnesses would only be seen by the jury on the screen rather than in person.

• [11] Part 5 of the Evidence Act deals with communication links, which is defined to include an AVL link (s 49). Section 49E, headed "Use of communication link by Territory entity", is located in Div 2 of Pt5, headed "Use of communication links generally". Div 2 applies to any Territory proceeding (sub-s 49D(1)). "Territory proceeding" is defined to mean a proceeding in or before a "Territory entity", which is defined to mean (relevantly) a court (s 49).
• [12] The relevant provisions of Div 2 are as follows
• [13] A Territory entity may direct that a person (relevantly) give evidence to the entity by a communication link from any place within or outside the Territory (including outside Australia) that is outside the place where the entity is sitting (s 49E(1)).
• [14] The entity may give such direction on its own initiative or on application by a party to the proceeding, and the direction may be subject to any conditions the entity considers appropriate (s 49E(2)).
• [15] The entity must not give a direction unless it is satisfied that the necessary facilities are available or can reasonably be made available (s 49E(4)).
• [16] The entity must have regard to the following matters, as appropriate (s 49E(5)):

(a) the risk of endangering the personal security of a person, including any safety and welfare considerations involved in transporting a person;

(b) the risk of an accused person escaping, or attempting to escape, from custody;

(c) past behaviour of a person while appearing before an entity or while in custody;

(d) the efficient use of available judicial and administrative resources;

(e) any other matters that the entity considers appropriate.

• [17] If the person to appear is an expert witness, or a police officer giving corroborative evidence, the person is to appear by AVL unless (s 49E(6)):

(a) the necessary facilities are not available and cannot reasonably be made available; or

(b) the entity is of the view that it is in the interests of justice that the witness should appear before the entity in person.

• [18] A person must not (relevantly) give evidence by AVL under Div 2 unless the place where the Territory entity is sitting and the place where the evidence would be given are equipped with AVL facilities that enable all appropriate persons at each place to see and hear all appropriate persons at the other place (s 49F).
• [19] Documents put to the person giving evidence by AVL may be put by AVL or electronic means and are admissible without proof that the transmitted copy is a true copy (s 49L).

• [20] For the sixteen Galiwinku witnesses, the Crown intends to use AVL facilities located in the Galiwinku Police Station. I was told that the facilities and the link will be tested on 12-13 January 2021, but are the same facilities as those used for the trial in the matter of The Queen v Mohammad Qadir in November 2020, in which, after Courtroom 6 was utilised, they functioned as required, including such that all appropriate persons at each place (ie the Court in Darwin and the remote location) were able to see and hear all appropriate persons at the other place. I was also told that the available facilities include the ability to put documents to witnesses by AVL or other electronic means.
• [21] For the two Gapuwiyak witnesses, the Crown intends to use AVL facilities located in the Gapuwiyak Court House. Those facilities are regularly used for the giving of evidence.
• [22] For DS Bradshaw, the Crown intends to use AVL facilities located in the Office of the Director of Public Prosecutions in Katherine.
• [23] I am satisfied that the necessary facilities are available as required by s 49E(4) and s 49F of the Evidence Act.

• [24] The Crown argues that permitting these witnesses to give evidence by AVL from Galiwinku and Gapuwiyak will ensure the efficient use of available judicial and administrative resources within s 49E(5)(d) because it will avoid having to transfer to and accommodate in Darwin the eighteen lay witnesses (and associated family members). The same applies in respect of the interpreters who will give assistance to the witnesses to give their evidence, who generally reside on Elcho Island. The substantial costs of travel and accommodation will be avoided if the application is allowed.

• [25] DS Bradshaw is expected to give evidence about the search of the vehicle in which the accused was travelling on 22 May 2018 which located the $32,100 the subject of Count 2. He is also to give evidence about other matters, such as the obtaining of search warrants. The Crown seeks for him to give his evidence by AVL because he is currently covering a greater than normal shift load in the absence of available staff. The accused did not oppose DS Bradshaw giving evidence by AVL.
• [26] By s 49E(6), a police officer giving "corroborative evidence" is to appear by AVL unless (relevantly) it is in the interests of justice that they give their evidence in person. In the circumstances, DS Bradshaw's evidence about the vehicle search could not be described as "corroborative evidence" within s 49E(6). It follows that whether the Crown should be permitted to call DS Bradshaw by AVL is to be dealt with in the same way as the other witnesses the subject of the application.

Any other matter the Court considers appropriate

• [27] The only other relevant matter for the Court's consideration is that set out in s 49E(5)(e), namely any other matter that the Court considers appropriate.
• [28] It may be accepted that, essentially, the Court exercises its discretion under s 49E(1) of the Evidence Act having regard to whether it is in the interests of justice to permit the evidence to be given by AVL.[1]
• [29] There is something of a dichotomy in the authorities as to whether evidence given by AVL is inferior to, or less effective than, or deprives a cross-examiner of forensic benefits available in, evidence given in person in the court, and so, where the persuasive burden lies in the determination of such applications.
• [30] After referring to numerous authorities from the Federal Court, and the courts of New South Wales, New Zealand and England, Katz J found, in Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 at [25] 'a strong current of authority in favour of permitting the relatively new video link technology to be used, in the absence of some considerable impediment telling against its use in a particular case'. Katz J highlighted that, in those authorities, matters such as the centrality of the witness's evidence to the case, the contentiousness of the evidence, its duration, that the case involved a serious criminal matter, perceived disadvantage to the cross-examiner, and issues in assessing credit had not prevented the exercise of the discretion in favour of the giving of the evidence by AVL.
• [31] On the other hand, after referring to other authorities, including from the Federal Court, Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; (2009) 181 FCR 152 held (at [77]) that the trend of authority was such as to require a persuasive case to be made out to use AVL to take evidence, particularly to impose it on an unwilling cross-examining party. His Honour identified (at [78]) three potential benefits from the witness giving evidence in person in court, namely:

(a) it enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations;

(b) it affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party; and

(c) it provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court.

• [32] His Honour concluded (at [78]) as follows:

I would not wish too lightly to deprive a cross-examiner of that traditional forensic element in the exchange [between cross-examiner and witness] although, as the cases universally make clear, the Court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party.

• [33] This view was adopted and said to apply with even greater force in the context of a criminal jury trial by Burns J in R v Sutton [2015] QSC 110; (2015) 250 A Crim R 457 at [27]. His Honour concluded (at [28]) that:

Jury trials in particular are enhanced by the presentation of evidence by the witnesses in person. It is neither desirable nor permissible to approach the proof of one's case in other than that way unless it is persuasively demonstrated that it is in the interests of justice to receive the evidence remotely.

• [34] I accept these statements of Buchanan J and Burns J. To my mind they simply acknowledge that, all other things being equal, evidence given in person is "better" than evidence given by AVL, and this simply requires the Court to be satisfied that, according to the circumstances of the particular case and the particular witness or witnesses, it is in the interests of justice for the evidence to be given by AVL. I endorse the observation, made over 20 years ago, of Coldrey J in R v Kim [1998] VSC 215; (1998) 104 A Crim R 233 (at 237) that:

The courts of this State [or this Territory] should embrace the new technologies of the 20th and 21st centuries which facilitate the trial process and where the use of such technology is consistent with the basic principles of justice.

• [35] It is clear that the nature and scope of the evidence the witness is to give, whether it is likely to be in contest, whether the credit or reliability of the witness will be in issue and, if so, whether the use of an AVL will be likely to affect the jury's ability to assess those matters, are factors to be considered by the Court in making the necessary determination.[2] Matters personal to the witness such as incapacity or illness, and travel and accommodation expenses associated with bringing the witness to court may also need to be weighed in the exercise of the discretion.[3] Further, the giving of evidence must be practical; for example, evidence by AVL would not be practical if the witness will be asked to mark or annotate a document, and this cannot be done with the available AVL facilities.[4]

• [36] The principal objection taken by counsel for the accused is that the traditional way in which criminal proceedings are run is for the witnesses to give evidence in person in the courtroom, and that the costs of doing so are a given and are not a sufficient reason to allow evidence to be given by AVL. The argument was that, in this case, it is proposed that half of the Crown's case (numerically speaking) be given by AVL rather than in person. As a matter of principle, I do not accept that the costs of bringing witnesses from remote locations to give evidence in person are necessarily a given in criminal proceedings and an insufficient reason to allow evidence to be given by AVL. I cannot see why the avoidance of some of the expense of public money on a criminal trial cannot legitimately be a relevant and significant factor that bears upon the interests of justice, particularly in light of longstanding and ongoing complaints about the unacceptably high costs of court proceedings and access to justice.
• [37] In addition, the accused opposes the application because the credit of these witnesses may "potentially" be in issue and the interests of justice require the accused has the opportunity to cross-examine the witnesses in person, essentially because of the benefits identified by Buchanan J in Campaign Master (UK) Ltd v Forty Two International (No 3) Pty Ltd as set out in paragraph 31 above.

• [38] I have already described the nature and scope of the evidence of the witnesses. It is all likely to be in contest and may potentially include issues of credit and reliability. However, the evidence of the sixteen witnesses from Galiwinku and the two from Gapuwiyak appears to be essentially corroborative of the evidence, to be given in person, of:

(a) the co-accused and another co-accused, Ronnie Wilson; and

(b) some five other witnesses, who are expected to give evidence about observing the accused and the co-accused supply cannabis, and/or their own purchase of cannabis from the accused and the co-accused, as well as evidence about depositing and withdrawing money from bank accounts on behalf of the accused and the co-accused.

• [39] Furthermore, the evidence of the eighteen witnesses is relatively confined in its subject matter and so is likely to be of relatively short duration. In the circumstances, I consider the potential detriment to the effectiveness of cross-examination, and the jury's ability to assess credit and reliability, from taking the evidence by AVL to be negligible.
• [40] The accused argued that having this many witnesses give evidence by AVL may lead the jury to wonder about the reasons for doing so, and possibly to take some adverse view of the accused. Evidence of complainants and other vulnerable witnesses is now routinely given by AVL in sexual offence cases, and the direction to the jury that this is a normal part of the way such cases proceed is a sufficient protection against any adverse consequences for the accused. In my view, in the same way, a similar direction in this case regarding the giving of evidence by AVL would address and alleviate any risk to the jury's perception of the accused.
• [41] The likely brevity of these witnesses' evidence also emphasises the inconvenience to the witnesses of having to travel to Darwin and remain in Darwin for some days to give their evidence.
• [42] In relation to DS Bradshaw, he is an experienced police officer who has most likely given evidence in court many times. I have no doubt he well understands the gravity and solemnity of the occasion of giving evidence in court, regardless of whether it is in person or by AVL. In all likelihood, there will be no difference between his giving evidence in person or by AVL.
• [43] On balance, taking into account the considerable costs and inconvenience to the witnesses and interpreters of travelling to Darwin to give evidence in person, and the minimal impact upon the effectiveness of cross-examination and the jury's ability to assess credit and reliability, I consider that it is in the interests of justice for the eighteen lay witnesses, and DS Bradshaw, to give their evidence by AVL from Galiwinku, Gapuwiyak and Katherine respectively.

[1] See R v Sutton [2015] QSC 110; (2015) 250 A Crim R 457 at [17]- [18] per Burns J; R v Kim [1998] VSC 215; (1998) 104 A Crim R 233 at 237 per Coldrey J; R v Goldman [2004] VSC 165; (2004) 148 A Crim R 40 at [35] per Redlich J.

[2] See R v Sutton [2015] QSC 110; (2015) 250 A Crim R 457 at [19] per Burns J.