Director of Public Prosecutions v Makary [2012] QMC 6

MAGISTRATES COURTS OF QUEENSLAND CITATION: DPP v Makary [2012] QMC 6 PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS (applicant) v ASHRAF KAMAL MAKARY (respondent) FILE NO/S: MAG-60327/11(4) DIVISION: Magistrates Courts PROCEEDING: Application under s 83A(5) for direction to receive evidence of witnesses via Video link from Korea ORIGINATING COURT: Magistrate Court at Brisbane DELIVERED ON: 20 March 2012 DELIVERED AT: Brisbane HEARING DATE: 20 March 2012 MAGISTRATE: Hine BP Deputy Chief Magistrate ORDER: The cross-examination of 3 witnesses is permitted via video link CATCHWORDS: CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES VIA VIDEO LINK - WHETHER VIDEO LINK WOULD BE INAPPROPIATE WHERE WITNESSES CREDIT IS CHALLENGED COUNSEL: AJ Fairne for the applicant M Chowdhury for the respondent SOLICITORS: Director of Public Prosecutions for the applicant Legal Aid Queensland for the respondent -- 1 of 9 -- The Application [1] This is an application under s 83A of the Justices Act 1886 (the Act) for three witnesses to give evidence via video link from Korea. [2] A previous direction was made under s 83A(5AA) of the Act in relation to cross-examination of witnesses at the committal hearing of the respondent. [3] The Act provides in Division 10A under the heading ‗Direction hearing‘ at subsection (5): (5) At a direction hearing, a magistrate may give a direction he or she is entitled to make at law about any aspect of the conduct of the proceeding, including, for example, about any of the following— ……. (d) receiving evidence or submissions by telephone, video link or other form of communication; [4] The Evidence Act 1997 provides in s 39R under the heading ‗Queensland courts may take evidence and submissions from external location‘: (1) Subject to any rules of the court, the court may, on the application of a party to the proceeding before the court, direct that a person appear before, or give evidence or make a submission to, the court by audio visual link or audio link from a location inside or outside Queensland, including a location outside Australia. [5] There is therefore, no question that this court is entitled to make a direction in relation to the witnesses giving evidence via video link. The direction may be made even though the witnesses are to give evidence from a location outside Australia. [6] In this matter the applicant is charged with serious charges of alleged multiple offences. The charges include 3 charges of rape, 5 charges of stupefying in order to commit an indictable offence, 2 charges of sexual assault (s 352 Criminal Code), 2 charges of deprivation of liberty, 2 charges of administer drug for purpose of sexual act, 1 charge of procure sexual act by false pretence, 3 charges of stealing and 1 charge of common assault. The offences are dated over a period from February to April 2011. [7] One of the witnesses sought to be examined is a complainant in relation to some of the charges and the other two witnesses are preliminary complaint witnesses. I am advised by the defence that the credibility of the complainant will be a real issue at trial. [8] It was submitted by the prosecution that the purpose of a committal hearing is to capture the evidence in depositions form and to exhaust all further details required by the defence under oath so matters can be put to the witnesses at trial. It was the submission of the prosecution that this does not involve issues that -- 2 of 9 -- require the actual attendance of witnesses as this is not a tribunal of fact and it is not a matter where material issues of fact are to be decided by the court. It was further submitted that the nature of the cross-examination goes to exploring the recollections of the witnesses in narrow issues and that this could be done without prejudice and with fairness to the accused without the attendance of the witnesses in person as it captures the matters in depositions form and that matters will not come as a surprise to the defendant at trial. [9] Samuels JA in Barron v A-G1 stated: As Hunt A-JA has pointed out, the joint judgment in Barton identified four advantages which committal proceedings will provide to a defendant. First, knowledge of what the Crown witnesses say on oath; secondly, the opportunity of cross-examining them; thirdly, the opportunity of calling evidence in rebuttal and, fourthly, the possibility that the magistrate will not commit. At the same time, as all the judgments in Barton make plain, these elements must be considered subject to the Attorney-General's undoubted right to file an ex officio indictment notwithstanding that the committing magistrate has discharged the defendant. Accordingly, this power much diminishes the weight to be attached to the loss of the fourth of the factors. The third is also of dubious importance since it is unusual for a defendant to give evidence as O'Brien J, a judge of immense experience in criminal prosecutions, pointed out in Carlin, loc cit. In any event, the third and fourth of the factors referred to are connected since the opportunity of calling evidence in rebuttal is one step towards the final possibility of discharge. Hence, it seems to me that the primary advantages of which an accused denied a committal is deprived are the first two of the factors listed, that is, knowledge of what the Crown witnesses say on oath and the opportunity of cross-examining them; see the judgment of Stephen J in Barton (at 105-106). There, his Honour thought that the loss of the first advantage could be made good to a degree by the production of particulars and that, although the loss of the opportunity to cross-examine was irremediable, the gravity of the loss ―will depend upon the nature of the offence charged and of the Crown's evidence. [10] The submissions of the prosecution do not capture fully the nature of committal proceedings even under the new system since the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act of 2010 was introduced. [11] I would quote part of what I have said previously on the nature of committal proceedings in Blacklidge v Police [2011] QMC 007:- The nature of committal proceedings [16] As stated in Carter's Criminal Law of Qld [130-13420] under the heading Nature of committal proceedings 1 (NSW) (1987) 10 NSWLR 215 at 217 -- 3 of 9 -- The hearing of committal proceedings is an administrative and not judicial function. The judicial officer conducting the hearing must, however, act judicially. Committal proceedings have been said to be an important part of the criminal process, but there are differing views about the necessity of committal proceedings for a fair trial. The matter was clarified somewhat in Barton and Another v R and Another2 - Gibbs and Mason JJ with whom Aickin J agreed stated These cases do not establish that there can be no unfairness or abuse of process in proceeding to trial without a preliminary examination. On the contrary, they show that the principal purpose of that examination is to ensure that the accused will not be brought to trial unless a prima facie case is shown or there is sufficient evidence to warrant his being put on trial or the evidence raises a strong or probable presumption of guilt (Justices Act s 41(6)). For this reason, apart from any other, committal proceedings constitute an important element in the protection which the criminal process gives to an accused person. [17] The nature and purpose of committal proceedings have been referred to in a number of authorities, all of which must now be read subject to the provisions which restrict the categories of witnesses who may be required to give oral evidence at committal proceedings. [18] In dealing with similar New South Wales legislation Studdert J in Hanna v Kearney3 stated: Such proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance. [19] It is stated in the loose-leaf edition of Carter‗s Criminal Law of Queensland by LexisNexis under the heading44 - Background The Moynihan Report considered the principle purposes of a committal hearing to be (a) to ensure that a defendant knows the case against him or her; and (b) to ensure that a trial in the Supreme or District Court is justified through the case meeting the requisite evidentiary threshold. [12] As to the submission that this is not a tribunal of fact and it is not a matter where material issues of fact are to be decided by the court I would make the following comments – 2 (footnote from Blacklidge) (1980) 32 ALR 449 3 (footnote from Blacklidge) (1998) NSW SC 227 4(footnote from Blacklidge) [392,155.5] -- 4 of 9 -- [13] On the 14th February 1996, in the Supreme Court, Ambrose J dealt with the matter of Purcell & Ors v. Quinlan & Anor2. That matter was an application for Judicial Review. In his decision His Honour stated inter alia ―It is contended that these observations indicate that the Stipendiary Magistrate strayed from the path which he should have followed in conducting the committal proceedings and embarked upon a course available only to a jury – that is to decide whether or not the three applicants should be accepted as truthful and reliable witnesses. It was contended that the magistrate exceeded his jurisdiction in adopting this approach and a number of authorities were cited to support this proposition. Included in those authorities were Doney v The Queen (1990) 171 CLR 207 (at pp.214-215) and The Queen v Sutton [1980] 2 Qd R 72 at P. 75. Those cases however did not purport to deal with the obligation on magistrates in committal proceedings. They deal with the obligation upon trial judges where evidence had been adduced before a jury to allow the jury to determine questions of guilt in the event that inferences in fact might be drawn to support either conviction or acquittal. See also The Queen v Stewart Ex Parte A G [1989] 1 Qd R 590 at 593. [14] His Honour went on to say ―In my view, those cases lend little support for the contention of the applicants. There is a very long line of authority to support the proposition that indeed in determining whether the prosecution has adduced sufficient evidence to put a defendant on trial, a committing magistrate should have regard to the reliability of the evidence not for the purpose of determining whether he personally is persuaded of guilt but for the purpose of determining whether any reasonable jury properly instructed could return a verdict of guilty upon it.‖ [15] His Honour then went on to discuss certain authorities. His Honour then concluded:- In my view, the observation approved in the Queen v Schwarten (Supra) that committal proceedings may only be conducted in a satisfactory way by one who has heard the case throughout ―and heard and seen for himself the witnesses and their demeanour‖ makes it impossible to contend that the assessment of the credibility/reliability of a witness called in such proceedings is not a matter which has relevance in determining whether evidence there adduced is sufficient to put an accused person on trial before a jury. One object of testing the evidence of a witness upon committal proceedings is to test the strength of the case brought against the defendant to see if it justifies putting him on trial.‖ [16] In that case also a passage from a decision of Bayley J in Cox v. Coleridge (1822) lB et C 37; 107 ER 15 was quoted:- 2 Application Number 190/95 -- 5 of 9 -- I think that a magistrate is clearly bound, in the exercise of a sound discretion, not to commit anyone, unless a prima facie case is made out against him by witnesses entitled to a reasonable degree of credit...". [17] I consider that proposition states the current state of the law in Queensland also and that the credit of witnesses is something that must be taken into account in deciding whether to commit the defendant. [18] This then becomes a matter for consideration in relation to the fairness of the proceedings to the defendant. [19] Counsel for the respondent submitted that the ordinary principle is that witnesses give their evidence in person. In support of that submission he quoted from the decision of Coldrey J in Kim Hyuk Kim3 The report of this judgment which was provided to me does seem somewhat truncated, but it has his Honour referring to comments by Giles J in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, Supreme Court, NSW, No 50006 of 1996, Giles CJ Comm D, 11 March 1997). In the course of that judgment Giles J remarked (at p 6): The ordinary procedure [that witnesses give evidence in Court] is as stated above and there are sound reasons for following it unless cause to the contrary be shown. The conduct of proceedings in open court, available to public scrutiny, is of great importance. Cross-examination may be more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of delay in voice transmission, or for other reasons, and the effectiveness of cross- examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the Court is assisted in fact finding by observance of what is misleadingly called the demeanour of the witnesses, upon which the taking of video evidence may impact. All that said, particularly where the evidence is relatively uncontroversial, the cross- examination is not likely to be lengthy, or no real issue of credit is involved, the taking of video evidence can be beneficial to the administration of justice and consistent with justice between the parties. It may permit the Court to receive the evidence of a witness which would otherwise not have been available, it may permit the evidence to be received without causing undue inconvenience to witnesses (which should be an important matter in the administration of justice), and it is now a feature of litigation — so much so that for some years the Federal Court of Australia has had in place the video conference facilities proposed in the present proceedings. [20] His Honour dealt with the public policy considerations raised in the following passage: 3 104 A Crim R 233 -- 6 of 9 -- In opposing the application, Mr Morrissey first canvassed what he described as public policy objections. The first of these was that to allow the application would tend to compromise the principle that witnesses ought to testify before a jury in person. No doubt that is the desirable and normal manner in which witnesses should give evidence. Of course the legislature has already provided for evidence to be given in other forms, two of which were previously canvassed, namely by way of depositional material or by the use of evidence taken from witnesses outside Australia (which may, for example, be videotaped). As stated earlier, the very existence of s 42E of the Act indicates that it is government policy that evidence also be given by way of video-link. Given the qualities of the video-link evidence to which I have already adverted, I do not think this objection has any substance. [21] It is the fact that in Queensland the Legislature has provided for evidence to be given in other forms such as a 93A statement under the Evidence Act 1977 and for Special Witnesses to give to give evidence via video link under s 21A of the Evidence Act. The Penalties and Sentences Act 1992 in s 15, the Criminal Practice Rules 1999 s 52 and the Uniform Civil Proceedings Rules at Rule 392 are other examples where video links to courts are permitted. [22] It was further submitted by the prosecution that the new committal system was aimed at making matters more efficient and cost effective to the community. Requiring the witnesses to fly back to Brisbane for cross-examination on narrow issues for a short period of time in court would be counter productive to the purpose of the new system. [23] It was submitted by Counsel for the respondent that the costs borne by the prosecution must come in second place to the right of the defendant to have the witnesses cross-examined in person and to allow him to actually see these witnesses. The main contention by the respondent is that it is necessary to allow his legal representatives to assess the witnesses‘ veracity which is much easier done here in court. [24] In that regard the words of Coldrey J in Kim Hyuk Kim4 are especially apposite In considering this passage it is pertinent to note that the necessary public scrutiny may still occur with video-link, the production of documents need not occasion difficulty, there is no real delay in voice transmission, and the demeanour of a witness may be assessed using video-link, (with such assessment, as I have already mentioned, being facilitated by the length of time a witness is in the witness box). Indeed, Giles J added that experience had shown that demeanour could adequately be assessed using video-link facilities. He cited (inter alia) B v Dentists Disciplinary Tribunal [1994] 1 4 supra -- 7 of 9 -- NZLR 95 at 108, a case to which I shall refer shortly, as authority for that proposition. Further, in relation to the issue of the credit of a witness, Sackville J disavowed the proposition that video-link would always be inappropriate where a witness's credit was likely to be challenged. [25] In R v Cox and others5 Kaye J set out the following relevant principles:- (1) The question for the court is whether it is in the interests of justice that an order be made under s 42E.7 (2) In considering that question, the right of the accused to a fair trial is paramount. 8 (3) It does not follow that, because the accused may sustain some forensic disadvantage by reason of an order under s 42E, such an order should not be made. 9 As Brooking J observed in a different context in Jarvie v Magistrates Court (Vic), 10 a " ... fair trial does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused." (4) The right of an accused to confront, in person, those who testify against him or her is a fundamental right in our criminal justice system. 11 (5) However, as Redlich J observed in Goldman, 12 that right, while fundamental, is not an absolute right at common law. Section 42E is a further qualification of that right in appropriate circumstances. (6) The question whether it is in the interests of justice to make an order under s 42E must be determined by balancing, on the one hand, the interests of the accused, and, on the other hand, the public interest in the ability of witnesses to give evidence in significant criminal trials without thereby occasioning danger to themselves or to other members of the community. 13 5 165 A Crim R 326 7(footnote to Cox) R v Kim (1998) 104 A Crim R 233 at 234[PDF]; R v Goldman (2004) 148 A Crim R 40[PDF] at [21]. 8 (footnote to Cox) Director of Public Prosecutions (Vic) v Weiss [2002] VSC 15[RTF] at [7]. 9 (footnote to Cox) R v Strawhorn [2004] VSC 415[RTF] at [3]; R v Goldman (2004) 148 A Crim R 40[PDF] at [29]; compare Jago v District Court (NSW) (1989) 168 CLR 23[PDF], 41 A Crim R 307[PDF]. 10 (footnote to Cox) Jarvie v Magistrates Court (Vic) [1995] 1 VR 84 at 90. 11(footnote to Cox) R v Goldman (2004) 148 A Crim R 40[PDF] at [18]; R v Ngo (2001) 124 A Crim R 151[PDF] at [10]. 12 (footnote to Cox) R v Goldman (2004) 148 A Crim R 40[PDF] at [23]-[25]. 13 (footnote to Cox) R v Goldman (2004) 148 A Crim R 40[PDF] at [29]. -- 8 of 9 -- (7) Nonetheless a court should not make an order under s 42E where to do so would unduly prejudice the right of an accused person to a fair trial. For, as I have observed, that right must be paramount [26] The prosecution have submitted that there are no documents to be transmitted or produced for the Cross-examinations. It was also submitted by the prosecution that a 512 kilobytes per second connection would only entail a quarter second delay between here and Korea. There is no evidence as to the connection to the court but having sat on many matters where video evidence has been given from overseas as well as in Australia it is my experience that the court video link is quite sufficient . [27] The prosecution has submitted that the cost of travelling and accommodation for each witness would be $3000.00. Travelling would also entail a 9 to 10 hour flight plus transfers to hotels and the court for each witness. [28] I have conducted many trials and found that video evidence is quite adequate to see and assess the demeanour of the witnesses. In a committal proceeding, even taking into account the fact that a magistrate must consider the credit of a witness, I consider it would be sufficient to view the witnesses via video link. I consider that the costs and the time of the witnesses are important considerations which in this matter outweigh the benefit of seeing the witnesses in person. [29] I hold that the interests of justice in this matter are met by allowing the witnesses to give evidence via video link. [30] Accordingly I order that the three witnesses the subject of the application give evidence via video link. -- 9 of 9 --