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Supreme Court 30 January 2020

R v Quintana (No. 1)

[2020] NSWSC 23

Homicide
CRIMINAL LAW EVIDENCE GIVEN BY AUDIO VISUAL LINK CRITICAL EYE WITNESS CREDIBILITY ISSUES MULTIPLE VERSIONS GIVEN WITNESS RELEVANT TO SELF

Citation: R v Quintana (No. 1) [2020] NSWSC 23
Court: Supreme Court of New South Wales
Date: 30 January 2020
Judge: Lonergan J

Background

The accused faced trial for the murder of a man allegedly stabbed at a residential unit in Tregear, New South Wales, on 28 February 2018. Two other people were present at the time: a man named Opai and a woman named Tairi. The Crown identified Tairi as a critical eyewitness, as she was present both before and during the alleged stabbing.

The trial was listed to commence before a jury on 3 February 2020, a date confirmed approximately ten months earlier. At no point during that period did the Crown raise any concern about securing Tairi's attendance. It was only in December 2019, six weeks before the trial, that the Crown first disclosed to the Court that Tairi was located in New Zealand and that her attendance was uncertain.

On 24 January 2020, the Crown applied under section 50 of the Trans-Tasman Proceedings Act 2010 (Cth) for leave to take Tairi's evidence by audio-visual link (AVL) from New Zealand, without any compulsory process such as a subpoena being available. The accused, who had been in custody for nearly two years, opposed the application.

  • Whether the Court should exercise its discretion under s 50 of the Trans-Tasman Proceedings Act 2010 (Cth) to permit a witness located in New Zealand to give evidence by AVL, in circumstances where no compulsive process could be issued against her.
  • Whether the credibility of the witness, her history of giving multiple inconsistent versions, and her apparent unwillingness to cooperate were relevant to that discretion.
  • Whether the Crown's delay and inadequate steps to secure the witness's attendance should weigh against granting the application.

Decision

Lonergan J refused the application. The Crown's case rested significantly on Tairi as an eyewitness to the circumstances immediately surrounding the stabbing. Self-defence was a live issue at trial, making her account directly relevant to the central contested question.

The Court found that Tairi had given five different versions of events across various interactions with police and investigators. Her credibility was therefore seriously in issue, and the ability to assess that credibility in the courtroom, in person, was critical. The Court drew a clear distinction between this situation and cases involving vulnerable witnesses giving evidence remotely in sexual assault matters, finding no valid parallel between those circumstances and those of an adult eyewitness to a fatal stabbing.

The Court also placed significant weight on Tairi's apparent unwillingness to cooperate voluntarily. She had failed to comply with bail conditions and had left Australia in circumstances that suggested she was avoiding engagement with the justice system. Because no compulsory process could reach her in New Zealand, permitting her to give evidence by AVL offered no guarantee of reliable participation. If she gave evidence intermittently or refused to be properly examined or cross-examined, the trial would miscarry.

Lonergan J was critical of the Crown and NSW Police for the inadequate and disorganised steps taken during 2019 to ensure Tairi's attendance. The Court noted that the accused bore no responsibility for those failures, and that the extradition process had by that point been significantly advanced. The Court considered that efforts to expedite extradition should continue, and that the affidavit material filed in support of the application did not establish that bringing Tairi to New South Wales within six weeks was impossible.

Orders Made

  • The Crown's application for Tairi to give evidence by AVL from New Zealand was refused.

Key Takeaways

  • The Supreme Court exercised its discretion to refuse an application under s 50 of the Trans-Tasman Proceedings Act 2010 (Cth) where the witness's credibility was seriously in issue, five inconsistent versions of events existed, and no compulsory process could be used to ensure cooperation.
  • A witness's history of providing contradictory accounts, combined with apparent efforts to avoid engagement with the justice process, can weigh heavily against permitting remote evidence in criminal proceedings.
  • The Court emphasised that the ability to assess credibility in person carries particular importance where self-defence is a live issue and the witness is the sole adult eyewitness to the surrounding circumstances.
  • Crown delay and inadequate preparation are not automatically cured by a late application to take evidence remotely. The Court treated the administrative failures as a relevant consideration in refusing relief.
  • No valid parallel exists, in the Court's view, between the use of AVL or pre-recorded interviews for vulnerable witnesses in sexual assault cases and the remote examination of an adult eyewitness in a murder trial where credibility is central.

Legislation and Cases Referenced

Legislation:
- Trans-Tasman Proceedings Act 2010 (Cth), s 50

Cases cited: None identified in the judgment text or metadata.