Citation: Regina v Wilkie, Burroughs & Mainprize [2005] NSWCCA 311
Court: NSW Court of Criminal Appeal
Date: 29 August 2005
Judge(s): Spigelman CJ; Ipp JA; Adams J
Background
Three applicants faced trial in the NSW Supreme Court on charges involving alleged contraventions of the Corporations Act 2001 (Cth). During the pre-trial phase, Howie J exercised his discretion under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 to allow an overseas witness to give evidence by audio visual link rather than appearing physically in court.
The applicants sought leave to appeal against that interlocutory ruling, raising a constitutional challenge. They did not contest Howie J's exercise of discretion on fairness grounds; the sole question was whether the Constitution permitted this mode of evidence-taking at all.
Because the ruling was interlocutory, leave to appeal was required before the Court of Criminal Appeal could consider the constitutional point.
Legal Issues
- Whether allowing a witness physically located overseas to give evidence by audio visual link contravenes the requirement in s 80 of the Commonwealth Constitution that every trial on indictment for a Commonwealth offence "shall be held in the State where the offence was committed"
- Whether the word "trial" in s 80 means each and every physical aspect of proceedings must occur within the State
- Whether s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 was constitutionally valid in the context of a Commonwealth indictable trial
Decision
Spigelman CJ (with Ipp JA and Adams J agreeing) rejected the applicants' argument and refused leave. The applicants had advanced five propositions: that the s 80 guarantee is unambiguous; that it admits no reading down; that "trial" means the whole trial; that oral evidence is adduced where it is given; and that, therefore, evidence given from overseas cannot be evidence given "in the State." The Court found this reasoning too rigid.
Spigelman CJ applied a principle of constitutional flexibility, observing that the procedural incidents of jury trial have never been immutable and have changed continuously since 1900. The Court identified the primary purpose of the phrase "held in the State" as ensuring the jury is drawn from the community of the place where the offence was committed. The provision is directed, first and foremost, at the identity of the jurors, not at the physical location of every participant in the proceedings.
The Court also found that a trial can accurately be described as "held in the State" even if some elements occur elsewhere. At the time of Federation, evidence not given physically before a jury could already be received in criminal trials, so the Constitution did not freeze an absolute requirement of physical presence for all witnesses. Video-link evidence, being a precise and instantaneous audio-visual replication displayed on equipment physically located in the State and directly observable by judge, jury and the public, was sufficient to satisfy the constitutional requirement.
The constitutional challenge therefore failed, and because Howie J's discretionary ruling on fairness had not been contested, no other ground for granting leave existed.
Orders Made
- Leave to appeal refused.
Key Takeaways
- Section 80 of the Commonwealth Constitution's requirement that a trial on indictment "shall be held in the State" is directed primarily at ensuring the jury is drawn from persons within the State where the offence was committed, not at mandating the physical presence of every participant, including witnesses.
- A trial is not deprived of the character of being "held in the State" merely because a witness gives evidence from overseas by audio visual link, provided the audio-visual replication occurs through equipment physically located in the State and is directly observable by the judge, jury and public.
- Constitutional interpretation of s 80 requires flexibility: the procedural incidents of trial by jury have never been fixed and have changed since Federation.
- Even in 1900, testimonial evidence not given physically before a jury could be received in criminal proceedings, meaning the Constitution did not entrench a strict requirement that all witness evidence be physically given within the State.
- Refusing leave, the Court of Criminal Appeal confirmed that s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 operates constitutionally in Commonwealth indictable trials where an overseas witness gives evidence by video link.
Legislation and Cases Referenced
Legislation:
- Commonwealth Constitution, s 80
- Corporations Act 2001 (Cth)
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
- Interpretation Act 1987 (NSW), s 31
- Judiciary Act 1903 (Cth), ss 68, 79
- United States Constitution, Art III, par 2, cl 3; Sixth Amendment
Cases:
- Attorney-General (NSW) v Brewery Employees Union of NSW (1908) 6 CLR 469
- Bell Group Ltd (in liq) v Westpac Banking Corporation (2004) 208 ALR 491
- Brown v The Queen (1986) 160 CLR 171
- Brownlee v The Queen (2001) 207 CLR 278
- Cheatle v The Queen (1993) 177 CLR 541
- Director of Public Prosecutions v Alexander (1993) 33 NSWLR 482
- Johnson v The Queen [2002] WASCA 78
- Jumbunna Coal Mine NL v Victorian Coalminers' Association (1908) 6 CLR 309
- Lipohar v The Queen (2000) 200 CLR 485
- Maryland v Craig, 497 US 836 (1990)
- R v Porter (2004) 61 NSWLR 384
- R v Ronen [2004] NSWCCA 176
- United States v Gigante, 166 F 3d 75 (2nd Cir, 1999)
- United States v Johnson, 323 US 273 (1944)
- United States v Yates, 391 F 3d 1182 (11th Cir, 2004)
- State of Minnesota v Sewell, 595 NW 2d 207 (Minn, 1999)