Citation: [2020] NSWDC 501
Court: District Court of New South Wales
Date: 4 September 2020
Judge(s): Russell SC DCJ
Background
These two related work health and safety prosecutions arose from an incident on 1 February 2017, in which a worker fell from a ladder at a Sydney construction site at 7.15am on his first day working there. He suffered serious spinal and back injuries. The prosecutor was SafeWork NSW; the defendants were the formwork contractor and the principal contractor responsible for the site.
With the trial listed to commence on 12 October 2020, the prosecutor sought directions that two interstate witnesses give their evidence by audio visual link (AVL). One witness, residing in Queensland with serious health problems, was not opposed. The other, a Victorian resident, was the injured worker himself, a key witness in the prosecution case, and his evidence was opposed.
The hearing of the motions was itself conducted by AVL using Microsoft Teams software, reflecting the practical constraints of the COVID-19 pandemic.
Legal Issues
- Whether the court should direct that the injured worker, a Victorian resident, give evidence by AVL under section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), despite the defendant's opposition
- Whether suitable AVL facilities were available in Victoria to enable the evidence to be given
- Whether a direction for AVL evidence would be unfair to the defendant, particularly given that the witness required an interpreter
Decision
Issue 1: Availability of suitable facilities in Victoria
Victorian court facilities, including the Supreme Court, County Court, Magistrates' Court, the Federal Circuit Court, and the Federal Court, were unable to provide AVL facilities to the District Court of NSW due to court backlogs caused by Victoria's declared state of disaster (at [10]). The Law Institute of Victoria indicated it could provide a conference room with AVL facilities, subject to Stage 4 restrictions being lifted by the trial date (at [11]). The court inferred, based on the status of the Law Institute of Victoria, that it had appropriate facilities, even though detailed evidence about those facilities was not before the court (at [13]).
Issue 2: Whether directing AVL evidence would be unfair to the defendant
The court accepted that most concerns raised about taking the evidence by AVL would arise equally if the witness attended court in Sydney, including the need for an interpreter and any physical or intellectual difficulties affecting the witness (at [15], [19]). The court noted that AVL proceedings move more slowly than in-court hearings, but found that the need for an interpreter would itself slow proceedings regardless of the venue, and therefore the use of an interpreter did not add a distinct unfairness to AVL evidence (at [19]). Practical difficulties with showing documents to the witness, including marked photographs, were addressed by directing the use of indexed and paginated document folders held by an independent lawyer at the remote location, with photographs capable of being transmitted by email if needed (at [21]-[22]).
Issue 3: Retention of power to modify the direction
The court emphasised throughout that a direction for AVL evidence is not irreversible. The court retains the power to revoke or modify any such direction if difficulties become apparent during trial, with the overriding objective being to ensure a fair trial (at [13], [23]). The direction was made despite the defendant's opposition, on the basis that the COVID-19 circumstances in Victoria effectively prevented the witness from travelling to New South Wales (at [9], [23]).
Orders Made
- Jeff Burnette to give evidence by AVL via Microsoft Teams from a conference room with facilities provided by the Queensland Law Society, with only an independent legal practitioner present in the room.
- Peyman Khaleghi to give evidence by AVL via Microsoft Teams from a conference room with facilities provided by the Law Institute of Victoria, with only an accredited interpreter and an independent legal practitioner present in the room.
- The prosecutor and the defendant to supply each independent legal practitioner with indexed and paginated folders of documents to be shown to the relevant witness; the defendant's folder to be provided to the witness only upon request by defence counsel.
- Liberty to apply to re-list the matter to amend the directions or make further directions necessary for the conduct of the trial.
- Costs of the Motions to be costs in the cause.
Key Takeaways
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Under section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the District Court may direct that a witness give evidence by AVL from outside New South Wales even where a party opposes such a direction, provided the court is satisfied that suitable facilities are available and the process will not be unfair (at [6], [23]).
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COVID-19 restrictions, including border closures and Stage 4 lockdown in Victoria, constituted practical circumstances that could justify a direction for AVL evidence where a witness was effectively prevented from travelling to New South Wales to give in-court evidence (at [9], [11]).
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Where most objections to the reliability or quality of AVL evidence would apply equally to in-person testimony (such as the need for an interpreter and physical limitations of the witness), those objections do not readily establish unfairness particular to the AVL format (at [15], [19]).
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A direction for AVL evidence remains subject to revocation or modification during trial if practical difficulties emerge, preserving the court's overriding obligation to ensure a fair trial in criminal proceedings (at [13], [23]).
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Practical obstacles, such as showing documents and marked photographs to a remote witness, can be managed through indexed document folders held by an independent lawyer and document transmission by email, as demonstrated in the court's earlier experience in the McConnell Dowell proceedings (at [21]-[22]).
Legislation and Cases Referenced
Legislation
- Corporations Act 2000 (Cth) , s 471B
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW) , s 5B
Cases
- Orr v Lake Coal Pty Limited [2019] NSWDC 178
- SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Ltd [2020] NSWDC 330