By way of a Notice of Motion filed on 17 December 2020, the first defendant, being the Diocese of Saint Maron, Sydney, seeks an order pursuant to r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW) that the second defendant, Father Sleiman Yammine, be permitted to give oral evidence by audio-visual link from Lebanon.
Mr Gyles SC appears on the application on behalf of the first defendant. Mr O'Neill appears on behalf of the plaintiff. The plaintiff opposes the application.
The first defendant relies on an affidavit of the solicitor for the first defendant, Catherine Power, dated 17 December 2020. The plaintiff relies upon an affidavit of the solicitor for the plaintiff, Alexander Maroulis, dated 17 December 2020. In the usual way in these types of applications, both affidavits comprise a mixture of fact and submission.
Although Mr Gyles submits that the application is a standard type of application being made during these COVID times, there are a number of unusual features to this application.
As set out in an Amended Statement of Claim filed 28 March 2019, the plaintiff alleges that during the period 2002 until approximately 2005, he was groomed and then sexually abused by the second defendant, who was at the time a member of the first defendant, the Maronite Church in Australia.
The first defendant has filed a Defence denying many of the allegations in particular denying that there was any sexual abuse or grooming by the second defendant.
The second defendant was previously charged and convicted of criminal offences in relation to the alleged abuse but his conviction was overturned on appeal. He spent some time in custody awaiting that appeal. Subsequent to his conviction being overturned, he moved to Lebanon where he has remained. He has no intention of returning to Australia at any time.
The second defendant has not been served. He is in a jurisdiction which may not be amenable to service. The plaintiff indicated to the first defendant on an earlier occasion that the matter would be proceeding without service of him.
The matter has been subject to case management by the registrar. Unfortunately, there was non-compliance with case management orders in 2019 and 2020, but orders were made by consent permitting the first defendant to serve the statement of the second defendant in December 2020 and his statement was served in December 2020 in accordance with the orders of the Court made at that time.
The first defendant submits that the Court has a general power to make orders permitting the evidence of a witness to be given by AVL. UCPR r 31.3 is an adjunct to the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). There can be no dispute that the Court has a broad discretionary power to permit evidence to be given by AVL. Mr O'Neill does not dispute the Court's power to do so even in these circumstances.
The party seeking the order bears the onus of establishing that it is appropriate that such an order be made. The Court must have regard to the interests of justice in determining whether an order should be made. Factors which may be relevant to the exercise of the discretion include the nature and significance of the evidence and the extent to which it might be disputed.
In these COVID times, many hearings have proceeded with only audio-visual evidence. Plainly, the Court could not have continued to hear cases over the past nine months unless AVL was the preferred method of evidence being given. It might be said that prior to 2020, taking evidence in-person was always the preferred and normal method of evidence being given but that can no longer be said.
Indeed, in this Court, it is still necessary to make an application to have a hearing in-person. Such a hearing in-person remains at the discretion of the Chief Justice. I should emphasise that that does not mean that it is necessary that a party file a specific motion but the usual procedure would be for the party seeking a hearing in-person to give some notice to the Court so that the Chief Justice could consider whether the particular matter is one which should be given a hearing in-person.
The Court's general experience of AVL is that it works well. Indeed, in some respects, it is easier for a judge to assess a witness as they are certainly very close up on the screen.
There is a danger that persons giving evidence from remote locations may not be in a room by themselves or at an appropriate place but that is a risk that has been taken in many cases in 2020. The Court generally deals with the risk by asking questions of the witness in advance of the witness giving evidence.
Mr O'Neill's opposition to the orders is not so much that AVL does not generally work or that it would not be appropriate in many cases but more that it is not in the interests of justice that the second defendant be permitted to not submit to the jurisdiction and give evidence in defence of the case against him.
It is said on behalf of the plaintiff that the second defendant left the jurisdiction immediately after he was freed from prison and has no intention of returning but still wants to defend the case against him by giving evidence from Lebanon.
Mr Maroulis sets out a number of what are said to be concerns of the plaintiff being that:
1. Although he is aware of the proceedings against him, he will not submit to the jurisdiction and expose himself to a judgment.
2. He will not be attending the proceedings to witness the pain and trauma he has caused the plaintiff.
3. He is not in the jurisdiction such that he could be dealt with appropriately if he is found to have been misleading the Court in some way in the giving of his evidence.
4. He has not provided any detail as to what measures would be taken in Lebanon to ensure the solemnity of the justice system is appropriately respected and adhered to by him.
5. There is a disparity between how the plaintiff is to give evidence and how his alleged abuser is to give evidence.
I am not making any decision on any matters of contested fact but I understand that the plaintiff may feel aggrieved (having regard to his belief as to the conduct of the second defendant) that the second defendant is not submitting to the jurisdiction; is allowed to give evidence in the way that is proposed and that he will not be required to attend Court to face up to the plaintiff.
I hasten to add that the second defendant has consistently denied any abuse of the plaintiff since these allegations were first raised, whether in the criminal or civil context.
Mr O'Neill submits that allowing the second defendant to give evidence in this way is not in the interests of justice and certainly does not do justice to the plaintiff. He says that "it is not appropriate that the second defendant gets to defend himself from the safety of Lebanon. It is not in the interests of justice that he be allowed to do so".
I have sympathy for the plaintiff's position but, in my view, it is important to have regard to the fact that this evidence is sought to be adduced by the first defendant.
I am considering the interests of the first defendant and the plaintiff and the general interests of justice.
Of course, in practical terms, it may be thought that the second defendant is giving evidence to defend himself but he has not been served and will not be served and he is being called by the first defendant as part of the first defendant's case.
Plainly, he is a critical witness. It is difficult to imagine that the first defendant would be proceeding with the defence of the matter (having denied the essential allegations by the plaintiff) without seeking to adduce evidence from the principal defence witness.
In those circumstances, if the order is not made at this time then either the first defendant will have to arrange for the second defendant to be in Australia and give evidence in February 2021 or the first defendant may seek an adjournment of the proceedings or the first defendant may simply decide to run the case without the evidence of the second defendant.
Mr O'Neill submits that will be up to the first defendant. However, Mr Gyles has made it plain that there is no possibility of the case running without the first defendant maintaining, consistent with its defence, that the abuse did not occur and adducing evidence in support of its defence.
Plainly, the plaintiff wishes the second defendant to submit to the jurisdiction and to be subject to the powers and orders of the Court, both in terms of the giving of his evidence and any consequences with might arise from the giving of his evidence. Mr O'Neill also suggests that, if the second defendant enters the jurisdiction it may be that he could be served but that is not a factor which I would have regard to in making any decision.
I am satisfied that the orders sought by the first defendant should be made. The use of AVL is an accepted method of giving evidence. I do not accept the submission that the plaintiff would be at a comparative disadvantage. Indeed, it is not yet clear whether the plaintiff will be permitted to give evidence in-person rather than by AVL.
I accept that there is always some risk when a person gives evidence from a remote location that something might be happening when the person is giving evidence which interferes with the integrity of the system but there is no evidence before me which would suggest that there is a higher risk of the integrity of the system being interfered with because the second defendant is giving evidence in Lebanon as opposed to, for example, Broken Hill at a person's home.
Further, whilst I accept that the plaintiff is concerned that the second defendant will not be coming to Court to face him, again that is not a basis on which I should not make the order having regard to the current health crisis.
Importantly, I am entitled to take account of the fact that it is likely to be very difficult for the second defendant to travel to Australia in February. He will be required to quarantine for 14 days at his own expense.
Further, there is a very high risk that even if he wanted to come to Australia and is prepared to submit to quarantine, he would not be able to organise it or would not be allowed to come. There are many thousands of Australians currently overseas who are seeking to return to Australia and are unable to do so having regard to current government regulations and restrictions and the unavailability of flights.
I am weighing up the interests of the first defendant and the plaintiff in considering the interests of justice generally. Despite Mr O'Neill's submission that it is inappropriate that the second defendant be allowed to defend himself from the safety of Lebanon, that is not what is occurring. He is being called as a witness in the first defendant's case.
In the circumstances, I am satisfied that the orders sought should be made.
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Decision last updated: 06 January 2021