Citation: R v Sigalla [2016] NSWSC 1178
Court: Supreme Court of New South Wales
Date: 19 August 2016
Judge(s): Adamson J
Background
The accused faced a jury trial listed to commence in October 2016. The Crown sought to call a witness based in New York as part of its prosecution case. The Crown applied under s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (NSW) for an order permitting that witness to give evidence from a video conference facility in Manhattan rather than appearing in person in Sydney.
The accused opposed the application. Counsel for the accused, however, conceded that the witness was an important witness for the prosecution. The central dispute was whether the statutory conditions for granting such an order were satisfied.
Legal Issues
- Whether audio visual link facilities were available for the purposes of s 5B(2)(a) of the Act
- Whether it was more convenient for the witness to give evidence in person in the courtroom under s 5B(2)(b)
- Whether making a direction under s 5B would be unfair to the accused under s 5B(2)(c)
- Whether the witness would actually give evidence if the order were made under s 5B(2)(d)
- Whether the Crown was required to prove positively that the witness refused to travel to New South Wales
Decision
Issue 1: Availability of facilities (s 5B(2)(a))
The Crown established through affidavit evidence that suitable audio visual link facilities were available at a professional video conference centre on Madison Avenue in New York at times when the court would be sitting. The accused did not contest this (at [6]).
Issue 2: Convenience of in-person attendance (s 5B(2)(b))
Adamson J accepted that, as the witness was located in the United States, he could not be compelled by subpoena to give evidence in New South Wales. Relying on the approach taken in R v Wilkie [2005] NSWSC 794, her Honour found that the question of convenience was effectively foreclosed: the witness simply could not be compelled to attend in person (at [7]).
Issue 3: Unfairness to the accused (s 5B(2)(c))
The accused argued he would be disadvantaged because the jury and the parties would not be able to observe the witness in person during cross-examination. Adamson J acknowledged this was a significant potential disadvantage given the witness's importance to the prosecution case (at [9]). However, her Honour was satisfied that this concern was substantially ameliorated by the professional quality of the available facilities, by practical measures that could ensure surprise documents in cross-examination were not visible to the witness in advance, and by the availability of an appropriate jury direction addressing the circumstances of the evidence (at [9]-[11]).
Issue 4: Willingness to give evidence (s 5B(2)(d)) and refusal to travel
The Crown's evidence established that the witness was willing to give evidence from New York. The prohibition in s 5B(2)(d) therefore did not apply (at [12]). As to the accused's argument that the Crown had not positively proved the witness refused to travel to Sydney, Adamson J held that s 5B does not impose such a requirement. In any event, the evidence demonstrated that the witness had exhausted his annual leave, had work and family travel commitments, and was unwilling to leave his wife, who had health problems, unaccompanied while he travelled to Sydney. Adamson J was satisfied that without the order, the prosecution would proceed to trial without the witness's evidence (at [13]-[14]).
Orders Made
- Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the witness is to give evidence in the trial by way of audio-visual link from the facility maintained by The Video Conference Centre at 8th Floor, 260 Madison Ave, NY 10016.
Key Takeaways
- Under s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (NSW), a court may direct that a witness give evidence by audio visual link even over an accused's objection, provided the statutory conditions in s 5B(2) are satisfied (at [15]).
- A witness located overseas cannot be compelled by subpoena to give evidence in New South Wales, which effectively forecloses the s 5B(2)(b) convenience inquiry in such cases (at [7]).
- Section 5B does not require the Crown to prove affirmatively that a witness has refused to travel to New South Wales; it is sufficient that the evidence establishes the witness will not attend and the trial would otherwise proceed without their evidence (at [13]-[14]).
- Potential unfairness to an accused arising from the absence of in-person cross-examination can be addressed by a combination of procedural safeguards at the remote facility and appropriate jury directions (at [9]-[11]).
- The concession by defence counsel that a witness is important to the Crown case does not of itself defeat an application under s 5B; rather, the importance of the evidence may be a reason favouring the grant of the order (at [4], [9]).
Legislation and Cases Referenced
Legislation
- Evidence (Audio and Audio Visual Links) Act 1988 (NSW), s 5B
Cases
- R v Wilkie [2005] NSWSC 794