Citation: Regina v Lodhi [2006] NSWSC 587
Court: Supreme Court of New South Wales
Date: 27 February 2006
Judge(s): Whealy J
Background
The accused faced charges under the Criminal Code Act 1995 (Cth) relating to the alleged preparation for terrorist acts in Australia, including collecting and making documents connected with the planning of bombings targeting the electricity supply system and defence establishments. The Crown's case was largely circumstantial, centring on the accused's association with a person named Willie Brigitte and their alleged shared connections to a terrorist organisation operating in Pakistan.
The Crown applied for orders permitting three overseas witnesses to give evidence by audio visual link (AVL), both at trial and on the voir dire (a preliminary hearing to determine the admissibility of evidence). The application was made under Part 1AE of the Crimes Act (Commonwealth) 1914, which had come into force in November 2005.
The accused opposed the application, arguing that allowing evidence by AVL would substantially and adversely affect his right to a fair hearing.
Legal Issues
- Whether the statutory preconditions for directing AVL evidence under s 15YV of the Crimes Act (Commonwealth) 1914 were satisfied.
- Whether making such orders would have a "substantial adverse effect" on the accused's right to receive a fair hearing, being the sole statutory ground for refusing the Crown's application.
- How the court should assess practical concerns about witness credibility, cross-examination, and the conduct of overseas authorities in the context of the fair hearing threshold.
Decision
Whealy J found that the preconditions in s 15YV(1) were met: the prosecutor had given reasonable notice, the witnesses were not defendants, they were available to give evidence by AVL, and the necessary facilities were available. The only question remaining was whether directing AVL evidence would have a "substantial adverse effect" on the accused's fair hearing rights. The section defines "substantial adverse effect" as one that is adverse and not insubstantial, insignificant or trivial.
His Honour worked through the defence objections in turn. Concerns about the inability to assess witness demeanour and credibility through a screen were acknowledged but not accepted as sufficient, given that AVL technology allows the court and parties to observe the witness directly in real time. The court noted that any residual disadvantage fell short of the statutory threshold.
The defence raised concerns about the venue proposed for the witnesses (a Department of Justice building in the United States) and about the conduct of US authorities in withholding witness statements from the defence. Whealy J was not satisfied that these matters, at least at this stage of proceedings, warranted refusal. He expressed the hope that the prosecution would assist the defence in obtaining the relevant statements, but declined to treat the complaints as establishing a substantial adverse effect on fairness.
On the question of open justice, the court accepted that practical arrangements such as an early start time for media attendance might be necessary, but found this did not effectively displace public or media access to proceedings.
Orders Made
- Orders made in accordance with Short Minutes of Order to be brought in by the parties.
- AVL directions granted for three overseas witnesses, for both the voir dire and trial.
- The Department of Justice building accepted as an appropriate witness venue, subject to additional safeguards discussed in the reasons.
- Parties directed to confer and agree on the identity of an observer under s 15YW and to prepare draft directions implementing the judgment.
Key Takeaways
- Under s 15YV(1) of the Crimes Act (Commonwealth) 1914, a court must direct AVL evidence on the prosecutor's application once the statutory preconditions are met, unless doing so would have a "substantial adverse effect" on the defendant's right to a fair hearing. The threshold is expressly defined as excluding effects that are insubstantial, insignificant, or trivial.
- Practical disadvantages in assessing witness demeanour via AVL do not automatically satisfy the substantial adverse effect test; the court assessed each objection on its specific facts.
- Concerns about the conduct of foreign authorities, including delays in providing witness statements, were relevant considerations but did not reach the refusal threshold where the court had only heard one side of the story.
- Section 15YW allows the court to appoint an observer to be physically present with the witness and report back, providing an additional safeguard in AVL proceedings.
- The court confirmed that open justice principles are not necessarily compromised by AVL arrangements, provided reasonable accommodation for media and public attendance is made.
Legislation and Cases Referenced
Legislation:
- Crimes Act (Commonwealth) 1914, Part 1AE, ss 15YV, 15YW, 15YX, 15YY, 15YZA, 15YZB, 15YZD
- Criminal Code Act 1995 (Cth), Part 5.3, ss 101.4, 101.5, 101.6
- Mutual Assistance in Criminal Matters Act 1987 (Cth)
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
- Supreme Court Rules
Cases:
- R v Wilkie & Ors [2005] NSWSC 794 (Howie J)
- Regina v Wilkie, Burroughs & Mainprize [2005] NSWCCA 311 (Spigelman CJ)
- R v Ngo (2001) 124 A Crim R 151
- R v NZ [2005] NSWCCA 278
- ASIC v Rich & Ors (2004) 49 ACSR 578
- R v McHardie & Danielson (1983) 2 NSWLR 733
- McDonald v Federal Commissioner of Taxation (2002) ATC 4271
- Australian Medical Imaging Pty Limited v Marconi Medical Systems of Australia Pty Limited (2001) 53 NSWLR 1
- McLean v Sydney Water Corporation [2001] NSWCA 122
- Moyette Pty Limited v Foundation Healthcare Limited [2003] FCA 116
- R v Park [1999] NSWSC 921
- Shayan Badraie (by his tutor Mohammad Badraie) v The Commonwealth of Australia & Ors, Johnson J, 6 December 2005