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Supreme Court 16 December 2020

R v Choi (No 2)

[2020] NSWSC 1849

Other
EVIDENCE AUDIO AND AUDIO VISUAL LINKS SPECIAL PROVISIONS FOR COVID 19 PANDEMIC

Citation: R v Choi (No 2) [2020] NSWSC 1849
Court: Supreme Court of New South Wales
Date: 16 December 2020
Judge(s): Adamson J

Background

The accused faced trial in the Supreme Court of New South Wales. The Crown sought to call five expert witnesses, each located in the United States of America, whose expertise related to matters arising from the charges.

The Crown filed a notice of motion on 4 December 2020 seeking orders that these witnesses be permitted to give their evidence by audio visual link (AVL) from outside New South Wales. The application was supported by an affidavit from a Crown representative detailing each witness's qualifications.

The accused, through his legal representative, consented to the evidence being given remotely, though the precise conditions remained to be settled.

Legal Issues

  • Whether the court should order that expert witnesses located in the United States give evidence by AVL under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
  • Whether the alternative COVID-19-specific provision, s 22C(4) of that Act, independently supported the same order
  • Whether the statutory preconditions under s 5B (including facility availability, convenience, and fairness to parties) were satisfied

Decision

Issue 1: Power to order AVL evidence from outside New South Wales

Adamson J identified two potential bases for the order. Section 5B of the Act confers power on the court to direct that evidence be taken from outside the courtroom or a place where the court is sitting. Section 22C(4), introduced in response to the COVID-19 pandemic, separately permits a witness's appearance by AVL where the court directs, provided the direction is in the interests of justice having regard to specified matters (at [4]).

Issue 2: Interests of justice under s 22C

The court took judicial notice that COVID-19 infection rates in the United States remained very high, contrasting with the relatively low rates in Australia at the time. Had the witnesses travelled to Australia, they would have required a Commonwealth travel exemption and a two-week quarantine, posing a risk to the local population. The court was satisfied it was in the interests of justice, and of public health, to make the order under either provision (at [4]-[6]).

Issue 3: Statutory preconditions under s 5B

The court considered each of the limiting conditions in s 5B. It was satisfied that the necessary AVL facilities were available or could reasonably be made available. The court was not satisfied that evidence could be more conveniently given in the courtroom; remote evidence was, in the court's view, overwhelmingly more convenient in the circumstances. The court was not satisfied that the direction would be unfair to any party, noting the accused's consent through his representative. The court had no reason to doubt that the five expert witnesses would give their evidence remotely (at [7]-[8]).

Orders Made

  • The following Crown witnesses are to give their evidence in the trial by audio visual link from a location outside New South Wales, in accordance with s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW):
  • Michael Elleman, Washington DC, United States of America
  • David Hoyh, Concord, California, United States of America
  • Steve Sin, Alexandria, Virginia, United States of America
  • David von Hippel, Oregon, United States of America
  • Jason Arterburn, Washington DC, United States of America

Key Takeaways

  • The Supreme Court held that both s 5B and s 22C(4) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) provided independent bases for ordering that overseas expert witnesses give evidence by AVL, and that either provision was sufficient to ground the order (at [6]).
  • Under s 22C(6), the interests of justice assessment expressly incorporates the public health risk posed by COVID-19; the court treated judicially noticeable facts about infection rates in the witnesses' home country as directly relevant to that assessment (at [4]-[5]).
  • Section 5B contains limiting conditions that must each be considered: the court found that AVL was overwhelmingly more convenient than in-person attendance, that facilities were available, and that no unfairness to any party arose (at [7]-[8]).
  • The accused's consent to remote evidence, while not determinative, was a relevant factor in the court's conclusion that the direction would not compromise a fair trial (at [8]).
  • Where overseas witnesses would face quarantine requirements upon entry to Australia, that public health burden weighed in favour of an AVL direction under both the general and the COVID-19-specific provisions of the Act (at [5]-[6]).

Legislation and Cases Referenced

Legislation
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5B, 22C

Cases
- Not stated