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5
Supreme Court 5 August 2005

R v Wilkie, R v Burroughs, R v Mainprize

[2005] NSWSC 794

Fraud & dishonesty
CRIMINAL LAW PRACTICE AND PROCEDURE WITNESSES UNWILLING TO ATTEND AUSTRALIA

Citation: R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794
Court: Supreme Court of New South Wales
Date: 5 August 2005
Judge(s): Howie J

Background

Three accused faced trial in the NSW Supreme Court on charges arising from their roles as officers of FAI General Insurance Company Limited (FAIG). The charges related to alleged deceptive conduct in connection with a reinsurance arrangement entered into between March and September 1998. Each accused faced a charge of failing to act honestly as an officer under the Corporations Act 2001 (Cth), and two of the accused also faced charges of providing misleading information under that Act.

The Crown alleged the accused participated in a joint criminal enterprise to deceive FAIG's auditors into believing a reinsurance contract represented a genuine transfer of risk, when in fact a secret guarantee ensured the reinsurer would never pay a claim. This concealment allegedly hid a $19.9 million loss to the FAI group, which was instead reported as an $8.6 million profit for the year ended 30 June 1998.

The Crown applied for two key prosecution witnesses to give evidence by audiovisual link from overseas: one from the United Kingdom and one from Hong Kong. Both witnesses were unwilling to travel to Australia to give evidence in person. The application was opposed by all three accused.

  • Whether the court had power under section 5B of the Evidence (Audio Visual Links) Act 1998 (NSW) and Part 36 rule 2A of the Supreme Court Rules to direct overseas witnesses to give evidence by audiovisual link.
  • Whether permitting evidence by videolink would breach section 80 of the Constitution, which guarantees trial by jury for Commonwealth indictable offences.
  • Whether the use of the videolink procedure would render the trial unfair to the accused, including whether cross-examination by audiovisual link was sufficiently effective.
  • Whether the Crown's refusal to give an undertaking as to costs thrown away if the trial had to be aborted due to failure of the videolink procedure affected the exercise of the court's discretion.

Decision

Howie J granted the application and directed both witnesses to give evidence by audiovisual link. The court found that the necessary statutory power existed under section 5B of the Evidence (Audio Visual Links) Act 1998 (NSW), and that the preconditions for making the direction were satisfied.

On the constitutional question, the court rejected the argument that allowing videolink evidence would breach section 80 of the Constitution. The guarantee of trial by jury does not extend to prescribing every aspect of the mode of receiving evidence, and the use of audiovisual links does not undermine the jury's fundamental role.

On fairness, the court was not persuaded that cross-examination by videolink would be so ineffective or disadvantageous to the accused as to render the trial unfair within the meaning of section 5B(2)(c). The court accepted that some limitations arise from the technology, but concluded these did not reach the threshold of unfairness in the circumstances of this case.

The Crown declined to give any undertaking as to wasted costs if the trial were aborted because the videolink procedure proved unworkable. Howie J expressed some discomfort with that refusal and treated it as a relevant discretionary consideration. However, the court ultimately concluded that the prospect of needing to abort the trial was unlikely, and that the significant public interest in the prosecution proceeding outweighed the concerns raised by the accused on this point. The court noted that the unfairness contemplated by section 5B(2)(c) concerns the fairness of the proceedings themselves, not fairness between the parties in a broader sense.

Orders Made

  • The witness Martyn Scrivens be directed to give evidence at trial by audiovisual link from the United Kingdom, pursuant to section 5B of the Evidence (Audio and Audio Visual Links) Act 1998.
  • The witness Anita Lee be directed to give evidence at trial by audiovisual link from Hong Kong, pursuant to section 5B of the Evidence (Audio and Audio Visual Links) Act 1998.

Key Takeaways

  • Section 5B of the Evidence (Audio Visual Links) Act 1998 (NSW) empowers a NSW court to direct overseas witnesses to give evidence by audiovisual link, including from places outside Australia, provided the statutory preconditions are met.
  • Permitting videolink evidence in a criminal jury trial does not, of itself, constitute a breach of section 80 of the Constitution: the constitutional guarantee of trial by jury does not dictate the precise manner in which evidence is received.
  • Under section 5B(2)(c), "unfairness" is directed at the fairness of the trial proceedings themselves, not at broader notions of fairness between the parties, such as the allocation of financial risk if the procedure fails.
  • A Crown refusal to give undertakings as to costs thrown away in the event of a trial abortion is a relevant discretionary consideration when the court exercises its power under section 5B(1), but it is not determinative and does not automatically warrant refusal of the application.
  • Significant public interest in the prosecution of serious corporate misconduct charges weighed in favour of granting the application, even where the Crown's conduct in refusing any undertaking attracted criticism from the court.

Legislation and Cases Referenced

Legislation:
- Evidence (Audio Visual Links) Act 1998 (NSW), ss 5B, 5C
- Corporations Act 2001 (Cth), ss 232(2), 1309(1)
- Constitution (Cth), s 80
- Judiciary Act 1903 (Cth), ss 68(1), 78A(1), 79
- Criminal Procedure Act 1986 (NSW), s 285
- Evidence Act 1995 (NSW), ss 137, 165
- Cost in Criminal Cases Act 1967 (NSW)
- Supreme Court Rules, Part 36 rule 2A, Part 75 rule 2(7)

Key Cases:
- Cheatle v The Queen (1993) 177 CLR 541
- Brownlee v The Queen (2001) 207 CLR 278
- Brown v The Queen (1986) 160 CLR 171
- Barton v The Queen (1980) 147 CLR 75
- Jago v District Court (NSW) (1989) 168 CLR 23
- R v Ngo (2003) 57 NSWLR 55
- Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia (2001) 53 NSWLR 1
- R v Ronen [2004] NSWCCA 176
- Bell Group Ltd v Westpac Banking Corporation (2004) 208 ALR 491
- Australian Securities and Investments Commission (ASIC) v Rich (2004) 49 ACSR 578
- State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588