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Supreme Court 4 February 2020

R v Quintana (No. 4)

[2020] NSWSC 33

Homicide
CRIMINAL LAW FIRST APPLICATION REJECTED CRITICAL EYE WITNESS CREDIBILITY ISSUES MULTIPLE VERSIONS GIVEN WITNESS RELEVANT TO SELF

Citation: R v Quintana (No. 4) [2020] NSWSC 33
Court: Supreme Court of New South Wales
Date: 4 February 2020
Judge(s): Lonergan J

Background

The accused stood trial for murder in the Supreme Court of New South Wales. A key witness, located in New Zealand, was a critical eyewitness whose evidence was relevant to a self-defence claim that could potentially result in an acquittal. The Crown sought to call her evidence by audio visual link (AVL) from New Zealand rather than requiring her physical attendance in court.

A first application for AVL leave had been refused just days earlier in R v Quintana (No. 1) [2020] NSWSC 23, primarily because there was insufficient information before the Court about the witness's understanding of the court process and her willingness to cooperate. The Crown filed a second application and sought leave to have the witness give oral evidence by AVL on the application itself, partly to demonstrate the adequacy of the technology and partly to allow the Court to assess her attitude toward cooperating.

The witness, located in New Zealand, had previously been granted bail in New South Wales, then breached her bail conditions, left the state for Melbourne, and subsequently left Australia for New Zealand. Her family had assisted her to obtain a passport to return home, and she acknowledged that all of this was done in breach of her bail obligations. An arrest warrant had been issued.

  • Whether the Court should grant leave under s 50(1) of the Trans-Tasman Proceedings Act 2010 (Cth) for the witness to give evidence by AVL from New Zealand at the murder trial
  • Whether the requirements in s 50(2) of that Act were satisfied, including whether the evidence could "more conveniently" be given from New Zealand and whether it was "appropriate" to grant leave
  • Whether the witness's demonstrated attitude toward court processes, and the technical quality of the AVL connection, precluded the granting of leave

Decision

Lonergan J refused the second application. Her Honour found the Crown's submissions about the anticipated level of the witness's cooperation to be unpersuasive. When cross-examined on the application, the witness had candidly stated she would not return to Australia because she did not want to go to gaol, that she was "too good" to be imprisoned, and that she would only cooperate with court processes where she perceived it to be in her personal interests. Lonergan J found this demonstrated a "fatuous understanding" of her obligations as a witness and no appreciation of the seriousness of her role in the proceedings.

Her Honour rejected the Crown's characterisation of the witness's responses as "candid" and cooperative. Rather than allaying the concerns raised in the first judgment, the evidence given on the application deepened them. The witness's own words made plain that her personal preferences were, in her view, a sufficient reason to defy the authority of the Court.

A further, previously unidentified problem also emerged during the AVL session. The audio connection dropped out intermittently and the witness had a heavy accent, creating a real risk that words could be misheard or lost. Given the witness's anticipated credibility as a contested matter, the existence of multiple prior versions of events, and the prospect of vigorous cross-examination, even minimal audio dropout carried the potential for unfairness to both the accused and the Crown.

On the statutory test, Lonergan J was not satisfied that the evidence could "more conveniently" be given from New Zealand, nor that it was "appropriate" to grant leave. The Court noted that extradition remained a potentially available avenue to secure the witness's physical presence, and that her physical appearance before the jury would ensure she understood herself to be subject to the compulsory processes of the Court.

Orders Made

  • The Crown's further application for the witness's evidence to be given by AVL at trial was refused.

Key Takeaways

  • Under s 50(2) of the Trans-Tasman Proceedings Act 2010 (Cth), an Australian court must not grant leave for evidence to be given by AVL from New Zealand unless satisfied, among other things, that the evidence can "more conveniently" be given from New Zealand and that it is "appropriate" to grant leave.
  • A witness's demonstrated willingness to comply with court processes only where it suits her personal interests was treated as a weighty reason to refuse AVL leave, not merely a credibility concern to be managed at trial.
  • Refusing leave on a second application remained open where the fresh evidence adduced in support of that application not only failed to address the deficiencies identified in the first refusal but introduced new reasons against granting leave.
  • Technical limitations of AVL evidence carry particular significance where cross-examination is expected to be vigorous and where the witness's credibility is squarely in issue; audio intermittency and accent difficulties can produce unfairness to either party.
  • The availability of extradition as a means of securing a witness's physical attendance was a relevant factor weighing against the grant of AVL leave, even where extradition might involve some delay.

Legislation and Cases Referenced

Legislation:
- Trans-Tasman Proceedings Act 2010 (Cth), ss 50(1), 50(2)

Cases:
- R v Quintana (No. 1) [2020] NSWSC 23