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Supreme Court 4 May 2001

R v Ngo; Dinh; Dao

[2001] NSWSC 339

Also reported as 124 A Crim R 151
Homicide
CRIMINAL LAW & PROCEDURE EVIDENCE LINK WITNESSES SCARED OF ACCUSED

Citation: R v Ngo; Dinh; Dao [2001] NSWSC 339
Court: Supreme Court of New South Wales, Common Law Division (Criminal)
Date: 4 May 2001
Judge(s): Dunford J

Background

Three accused faced trial in connection with the murder of a politician, who was shot dead outside his home. The Crown alleged the killing was organised by the first accused for political advantage. Two witnesses, referred to as Mr and Mrs L, had observed the first accused near the scene of the shooting two nights before the death and were expected to give evidence about that observation.

Both witnesses had previously given evidence at a Coronial Inquest. During that inquest, Mr L became visibly distressed upon learning that the counsel cross-examining him appeared for the first accused. Mrs L also expressed fear. After the inquest, Mrs L noticed a vehicle parked outside their home late at night for approximately three hours, with occupants she described as Asian, and the household received unexplained telephone calls inquiring whether the property was for sale and confirming their surname. Both witnesses expressed serious concern for their own safety and that of their family.

The Crown applied for the two witnesses to give evidence by video-link from a remote location, in conditions where their facial features could not be observed by any of the accused. The accused opposed the application, raising concerns about fairness and the risk of setting a broad precedent.

  • Whether the court had power, under the Evidence (Audio and Audio Visual Links) Act 1998 as amended and the Supreme Court Rules, to direct witnesses to give evidence by video-link from a remote location in criminal proceedings where all parties remained within New South Wales
  • Whether a direction could lawfully be made in terms that prevented the accused from seeing the witnesses on the video feed, and whether this was consistent with the accused's right to attend proceedings
  • Whether the witnesses' fear of the accused provided sufficient grounds to exercise the discretion to make such a direction
  • Whether granting such an application would impermissibly "open the floodgates" to routine use of this procedure whenever a witness was reluctant to face an accused in court

Decision

Dunford J noted that legislative changes introduced by the Evidence (Audio and Audio Visual Links) Amendment Act 2000 had removed the prior limitation that confined the Evidence (Audio and Audio Visual Links) Act 1998 to situations where parties were outside New South Wales. As a result, the Act now applied to any New South Wales court proceedings, including criminal trials, where parties remained within the state.

The court examined whether the direction could properly be framed so that the accused could hear, but not see, the witnesses on the video-link screen. Dunford J found that neither the Act nor the Supreme Court Rules required every accused to be able to see each witness. Section 20A of the Act addressed persons in the courtroom generally and did not in express terms require visual access to the witness. The relevant Supreme Court Rules prevented orders that would stop an accused from "attending" proceedings but contained no equivalent requirement that the accused be able to see a witness.

On the discretionary question, Dunford J accepted the evidence of the witnesses' genuine and serious fear. That fear was corroborated by the observations of a senior police officer at the inquest, by Mrs L's account of the vehicle outside their home, and by Mrs L's own visible distress when brought into the courtroom for the voir dire, which dissipated only once she confirmed the accused were absent. The court weighed the established principle that oral confrontation should not be waived lightly against the equally important principle that justice requires all available relevant evidence to reach the jury, and that a fair trial is fair to both the State and the accused.

Dunford J rejected the "floodgates" submission, noting that the power must be carefully circumscribed and was not open to broad application simply because a witness was reluctant. However, in the circumstances of this high-profile case, where the evidence was significant and the witnesses' fear was genuine and objectively supported, the direction was appropriate. The court adopted a configuration similar to that ordered in the previous trial: the screen was positioned above the dock, visible to the jury but not to the accused, and a dummy screen was placed in front of the dock. The accused were directed not to turn to view the screen.

Orders Made

  • Both witnesses were directed to give evidence by audio-visual link from a remote location
  • The hearing was transferred to Courtroom 7, configured so that the video screen was visible to the jury but not to the accused
  • The accused were directed not to turn around to view the screen
  • A dummy screen was placed in front of the dock

Key Takeaways

  • Amendments to the Evidence (Audio and Audio Visual Links) Act 1998 by the Evidence (Audio and Audio Visual Links) Amendment Act 2000 extended the Act's operation to all New South Wales court proceedings, removing the prior limitation to situations where a party or witness was outside the state.
  • Neither the Act (including s 20A) nor the Supreme Court Rules (Pt 36 r 2A; Pt 75 r 8) expressly required that every accused be able to see, as distinct from hear, a witness giving evidence by video-link.
  • A direction permitting witnesses to give evidence by video-link without being visible to the accused does not breach the accused's right to attend proceedings, provided the accused can hear the evidence and remains present.
  • The power to order prosecution witnesses in criminal trials to give evidence by video-link must be carefully circumscribed; genuine, corroborated fear of the accused, not mere reluctance, is the relevant standard.
  • A fair trial is fair to both the prosecution and the accused; the interests of justice include ensuring that all available and relevant evidence reaches the jury.

Legislation and Cases Referenced

Legislation:
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5(1A), 5A, 5B, 20A
- Evidence (Audio and Audio Visual Links) Amendment Act 2000 (NSW), No. 16, Sch 1[5]
- Supreme Court Rules (NSW), Pt 36 r 2A; Pt 75 r 8

Cases:
- R v McHardie and Danielson [1983] 2 NSWLR 733
- R v Smellie (1919) 14 Cr App R 128
- R v DJX and ors (1990) 91 Cr App R 36
- R v Sparkes (Supreme Court of Tasmania, unreported, 1 October 1996)
- R v West (1990) 51 A Crim R 317
- Park v Citibank Savings Ltd (1993) 31 NSWLR 219
- McKinney v The Queen (1991) 171 CLR 468