Evidence given by alternative means

[1-360] Introduction

This section addresses directions or warnings where evidence is given by alternative means particularly Closed Circuit Television (CCTV), alternative seating arrangements, the use of screens, support persons, the admission of pre-recorded out-of-court representations to police and evidence given via audio visual link. The following Table sets out in summary form many of the relevant provisions for a “vulnerable person”, a complainant/sexual offence witness and a domestic violence complainant.

 

Complainant/ sexual offence witness defined in s 294D in prescribed sexual offence proceedings: Criminal Procedure Act 1986

Vulnerable persons defined in s 306M in personal assault proceedings: Criminal Procedure Act 1986

Domestic violence complainants: Criminal Procedure Act 1986, s 3 and Pt 4B

Children in Commonwealth sexual offence proceedings: Crimes Act 1914

CCTV and similar technology

“Entitled to” give evidence

s 294B(3)(a)

s 306ZB(1)

Only if ss 290(1) and 294B(2A) or ss 306P and 306M(1) apply

s 15YI

Criteria

s 294B(5)–(6) — court may order CCTV /other technology not be used based on special reasons in interests of justice

s 306ZB(4)–(5) — court may order CCTV /other technology not be used based on special reasons in interests of justice

Only if ss 290(1) and 294B(2A) or ss 306P and 306M(1) apply

s 15YI(1)–(2) — must give evidence by CCTV unless the vulnerable person (16 years or over) chooses not to or court orders if satisfied not in interests of justice

Warning required

s 294B(7)

s 306ZI(1)

Only if ss 290(1) and 294B(2A) or ss 306P and 306M(1) apply

s 15YQ(1)(b) — contrary warning prohibited

Other alternative arrangements (use of screens, seating arrangements, etc)

“Entitled to” give evidence

s 294B(3)(b)

s 306ZH

Only if ss 290(1) and 294B(2A) or ss 306P and 306M(1) apply

s 15YL

Warning required

s 294B(7)

s 306ZI(4)

Only if ss 290(1) and 294B(2A) or ss 306P and 306M(1) apply

s 15YQ(1)(b) — contrary warning prohibited

Support person

Right to support person

s 294C(1)

ss 306ZD(2)(b), 306ZK(2)

Only if ss 290(1) and 294B(2A) or ss 306P and 306M(1) apply

ss 15YJ(1)(c), 15YO

Warning required

None specified

s 306ZI(3)

Only if ss 290(1) and 294B(2A) or ss 306P and 306M(1) apply

s 15YQ(1)(d) — contrary warning prohibited

Pre-recorded interview

May give evidence by pre-recorded interview/statement

N/A

ss 306S(2), 306U(1)–(2)

s 289F(1)

s 15YM

Criteria

N/A

s 306Y — court may order recording not be used if not in interests of justice

s 289G

s 15YM(1)(b), (2) — court required to grant leave; must not grant leave if not in interests of justice

Warning required

N/A

s 306X

s 289J

s 15YQ(1)(c) — contrary warning prohibited

[1-362] Giving of evidence by CCTV and the use of alternative arrangements

There are three NSW statutory schemes for evidence given via CCTV and other alternative arrangements: one relating to complainants in sexual offence proceedings; one relating to evidence given by “vulnerable persons” in criminal proceedings and one related to “government witnesses”. Unless otherwise stated, statutory references are to the Criminal Procedure Act 1986. For statutory references to the repealed Evidence (Children) Act 1997: see overleaf.

Complainants in sexual offence proceedings

Where proceedings are in respect of a “prescribed sexual offence” (as defined in s 3), alternative arrangements may be made for a complainant giving evidence: s 294B(1).

The complainant is entitled to, but may choose not to, give evidence from a place other than the courtroom by means of CCTV or other technology that enables communication between that place and the courtroom: s 294B(3)(a). The complainant may instead choose to give evidence by making use of alternative arrangements, such as planned seating arrangements or the use of screens, to restrict contact (including visual contact) between the complainant and the accused person or any other persons in the courtroom: s 294B(3)(b).

Despite the entitlement of a complainant to give evidence by way of CCTV or other technology (s 294B(3)), the court may order that such methods are not to be used: s 294B(5). However, such an order can only be made where the court is satisfied that there are special reasons, in the interests of justice, for the complainant’s evidence not to be given in such a manner: s 294B(6). It is generally not a sufficient reason to deny the use of CCTV or other technology merely because the jury might form the impression that the accused is/was violent: Sudath v R (2008) 187 A Crim R 550 at [28]–[29]. Section 294B(2) provides that s 294B does not apply to the giving of evidence by a vulnerable person (within the meaning of Pt 6) if Div 4 of that Part applies to the giving of that evidence.

Sexual offence witnesses

The protections afforded to complainants extend to witnesses against whom an accused person is alleged to have committed a sexual offence: s 294D. A “sexual offence witness” is defined in s 294D.

Vulnerable persons in personal assault offence proceedings

Similar provisions apply in proceedings relating to the commission of a personal assault offence (as defined in s 306M(1)), for witnesses who fall within the definition of a “vulnerable person” following the passing of the Criminal Procedure Amendment (Vulnerable Persons) Act 2007. The transitional provision provided that amendments made to the Criminal Procedure Act by that Act do not extend to any proceedings commenced before the commencement of the amendments (12 October 2007) and any such proceedings are to be dealt with as if the amending Act had not been enacted: Sch 2, Pt 14, cl 55 Criminal Procedure Act.

A vulnerable person is defined to include a child: s 306M(1). The provisions apply to children under the age of 16 years at the time the evidence is given (s 306P(1)), or children under the age of 18 years at the time the evidence is given but who were under the age of 16 years at the time the charge was laid: s 306ZB(2).

The Criminal Procedure Amendment (Vulnerable Persons) Act 2007 initially defined a vulnerable person to be “an intellectually impaired person” in s 306M(1). However the Crimes Amendment (Cognitive Impairment — Sexual Offences) Act 2008, which commenced on 1 December 2008, omitted “an intellectually impaired person” and inserted instead “a cognitively impaired person”. The provisions that previously applied to the evidence of “intellectually impaired persons” (including the various means by which “vulnerable persons” may give evidence) now apply to the evidence of “cognitively impaired persons” (ss 76, 91, 185, 306M, 306P, 306R, 306T and 306ZK): Sch 2.

A cognitively impaired person is defined in s 306M(2) to include any of the following:

(a) 

an intellectual disability

(b) 

a developmental disorder (including an autistic spectrum disorder)

(c) 

a neurological disorder

(d) 

dementia

(e) 

a severe mental illness

(f) 

a brain injury.

The 2008 Act did not have transitional provisions addressing whether the new cognitively impaired person definition extends to any proceedings commenced before the commencement of the amendments. This is apparently because the amendments in the 2008 Act merely involved a change in the terminology used for this class of vulnerable persons. For this reason the transitional provision for the 2007 Act (referred to above) continues to have application.

The provisions apply to cognitively impaired persons “only if the court is satisfied that the facts of the case may be better ascertained if the person’s evidence is given in such a manner”: s 306P(2).

The key provisions corresponding to those for sexual offence complainants are:

  • entitlement to give evidence by means of CCTV or other technology: s 306ZB

  • judge may order vulnerable person must not give evidence by CCTV or other technology if there are special reasons, in the interests of justice, that such means not be used: s 306ZB(4)–(5)

  • availability of other alternative arrangements (screens and planned seating arrangements): s 306ZH.

The court may make an order for an accused who is a vulnerable person to give evidence by alternative means: s 306ZC(2). With respect to a child, such an order may only be made if the court is satisfied that the child may otherwise suffer mental or emotional harm or that the facts may be better ascertained if an order is made: s 306ZC(3).

Commonwealth sexual offence proceedings

Part I AD Crimes Act 1914 (Cth) provides for evidence to be given by way of CCTV and the use of alternative arrangements with respect to vulnerable persons. The Table at [1-360] summarises the provisions. Assuming the facilities are available, a vulnerable person must give evidence by way of CCTV unless the court orders otherwise on the basis that it is not in the interests of justice: s 15YI(1)–(2). A vulnerable person (as defined in s 15YI(1A)) aged 16 years or over may choose not to give evidence by way of CCTV: s 15YI(1)(a). Other arrangements, such as the use of screens or planned seating, may be used as an alternative to CCTV: s 15YL.

Government agency witnesses

A “government agency witness”, defined in s 5BAA(5) Evidence (Audio and Audio Visual Links) Act 1998 as including police witnesses who give corroborative evidence and staff of the NSW Health Service, must give evidence by audio link unless the court otherwise directs and subject to any relevant rules of the court: s 5BAA(1). The section does not apply unless the necessary links are available or can reasonably be made available: s 5BAA(2).

The DPP (NSW) Prosecution Guidelines remind prosecutors proposing to call government agency witnesses that the convenience of those witnesses must always be the paramount consideration, regardless of any perceptions that the evidence might be diminished because it is being given remotely: see Guideline 34 “Calling of expert evidence and the use of audio visual links (AVL)”. It also states that the best practice to be adopted is that the court be advised of the need for AVL when the trial is fixed for hearing.

Practice Note No SC Gen 15 “Use of audio-visual links in criminal and certain civil proceedings”, which commenced on 1 January 2009, establishes arrangements for the use of AVL in criminal proceedings in NSW courts. Clause 5 provides that in the case of appearances by government agency witnesses, if they have not already done so, no less than 10 working days prior to a hearing, parties to the proceedings are to advise the court and each other if government witnesses are to give evidence by AVL. There is no equivalent practice note in the District Court.

[1-363] Implied power to make screening orders

In addition to the cited statutory provisions available for particular witnesses to give evidence by alternative means, including through the use of screens, the courts have implied powers related to the exercise of their jurisdiction. Such powers exist to serve the administration of justice: John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 481; BUSB v R (2011) 80 NSWLR 170 at [27], [34]. Such an order will only be made where it is necessary to do so: Grassby v The Queen (1989) 168 CLR 1 at [21]. “Necessary” in this context means that it should be “subjected to the touchstone of reasonableness”: Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at [51] quoting State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 477 at 452. The test of necessity should be applied with varying degrees of strictness and, where the relevant implied power impinges upon a fundamental principle of the administration of criminal justice, such as the right to confront accusers, the test must be applied with a higher level of strictness: BUSB v R at [33].

In BUSB v R, the scope of the power was discussed in connection with the power to make orders for the screening of witnesses. In that case, it was accepted that the District Court did have such a power: at [24], [51]. The court confirmed that such an order could be made for the purpose of protecting national security: at [42], [62]. The court distinguished between the existence of the power on the one hand and the “facts and matters pertinent to the exercise of the discretion” which will vary from case to case: at [42]–[44], [48]–[50].

The exercise of such powers should be “carefully circumscribed”: R v Ngo (2001) 124 A Crim R 151 at [26]. See also R v Ngo (2003) 57 NSWLR 55 at pp 69ff which dealt with a similar issue in the context of witnesses being permitted to give evidence remotely without the accused being able to see them while they gave their evidence.

[1-364] Warning to jury regarding use of CCTV or alternative arrangements

New South Wales offence proceedings

The requirement to give the jury a warning where evidence is given via CCTV or other technology applies to complainants in prescribed sexual offence proceedings (s 294B(7)) and to vulnerable persons in personal assault offence proceedings: s 306ZI(1). In either case, the judge must:

(a) 

inform the jury that it is standard procedure for evidence in such cases to be given by those means or use of those arrangements, and

(b) 

warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because it is given by those means or by use of those arrangements.

A warning in similar terms is required where alternative arrangements (eg screens and seating) are employed: ss 294B(7), 306ZI(4).

In R v DBG (2002) 133 A Crim R 227, it was held at [23]:

… it is highly preferable that a trial judge gives such information and warnings as are required in respect of a particular part of the evidence that is to be given in a trial before a jury either immediately before or immediately after the giving of that evidence rather than to wait to fulfil that obligation during the course of the summing up. Generally speaking, it would be expected that any information or warning that a jury is required to consider in their assessment of a particular piece of evidence would have considerably more impact upon the jury if given at a time proximate to the evidence. This does not mean that it would not be advisable, or even necessary in some cases, to convey that information or warning again during the course of the summing up. But whether such a course is necessary in order to ensure a fair trial and one according to law will depend upon all the circumstances of the particular case and the nature of the information or warning that must be given.

This passage in R v DGB was approved in RELC v R (2006) 167 A Crim R 484 at [43]–[44].

[1-366] Suggested direction — use of CCTV or other alternative arrangements

The complainant in this case has given [or, will give] evidence by CCTV [or other alternative means]. This is standard procedure in cases of this type. You should not draw any inference against the accused or give the evidence any greater or lesser weight simply because it is given in this manner. You should assess the evidence in the same way as you assess the evidence of any other witness in the case.

Commonwealth sexual offence proceedings

Section 15YQ(1)(b) Crimes Act 1914 (Cth) provides that the judge is not to warn the jury or suggest to the jury in any way that the law requires greater or lesser weight to be given to evidence that is given by way of CCTV or alternative arrangements. This does not appear to preclude a direction in the terms suggested above. If the full direction is not given, it may be considered appropriate to at least inform the jury that the giving of evidence in this fashion is standard procedure in cases of the type.

[1-368] Right to a support person

New South Wales offence proceedings

Complainants in sexual offence proceedings and vulnerable persons in criminal proceedings in any court are entitled to have a support person present when they give evidence: ss 294C(1), 306ZK(2). This applies even where the witness gives evidence by way of alternative means or arrangements: ss 294C(2)(a), 306ZD(3).

In the case of a vulnerable person, the judge must under s 306ZI(3):

(a) 

inform the jury that it is standard procedure in such cases for vulnerable persons to choose a person to be with them, and

(b) 

warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those alternative arrangements.

There is no corresponding requirement in relation to complainants in sexual offence proceedings. Nevertheless, it may be considered appropriate to say something along the lines of what is said in the case of vulnerable persons.

[1-370] Suggested direction — presence of a support person

You may notice that there is person sitting beside the witness as he or she gives evidence. It is standard procedure for a [child/intellectually disabled/cognitively impaired person], when giving evidence, to be accompanied by a person of their choice. You should not draw any inference against the accused or give the evidence any greater or lesser weight simply because of the presence of this other person.

Commonwealth sexual offence proceedings

A vulnerable person may be accompanied by a support person when giving evidence in Commonwealth sexual offence proceedings, even if evidence is given by alternative means: ss 15YJ(1)(c), 15YO Crimes Act 1914 (Cth). The judge is not to warn the jury or suggest to the jury in any way that the law requires greater or lesser weight to be given to evidence because the child giving evidence is accompanied by an adult: s 15YQ(1)(d). This does not appear to preclude a direction in the terms suggested above.

[1-372] Giving evidence of out-of-court representations

Vulnerable persons

If a statement made by a vulnerable person to an investigating official regarding a criminal offence is recorded, the vulnerable person is entitled to give evidence in chief in the form of the recording: s 306U(1) Criminal Procedure Act 1986. In R v NZ (2005) 63 NSWLR 628 it was observed at [170]:

One of the objectives of introducing this procedure was to reduce the trauma for children giving evidence, but it was also to aid in maintaining the reliability of the child’s account from contamination or a failure of recollection over time.

With respect to children, the right applies to a child who was under the age of 16 years at the time the recording was made, regardless of his or her age at the time of giving evidence: s 306U(2). Unless the witness giving evidence is the accused, he or she, must be available for cross-examination and re-examination: s 306U(3). The cross-examination and re-examination may be conducted either orally in the courtroom or by means of alternative arrangements: ss 306U(3), 306W.

The hearsay and opinion rules under the Evidence Act 1995 do not prevent the admission or use of recorded evidence: s 306V: Tikomaimaleya v R (2017) 95 NSWLR 315 at [54]. The recording is not to be admitted unless it is proved that the accused person and his or her lawyer were given a reasonable opportunity to listen to, or view the recording, in accordance with the regulations: s 306V(2); Pt 5 Criminal Procedure Regulation 2017. However, s 306V(3) provides that a recorded statement may be admitted into evidence, despite a failure to comply with notice requirements in the regulations, where the parties consent or if the accused has been given a reasonable opportunity to access the recording and it would be in the interests of justice for it to be admitted. The trial judge retains a discretion to rule that the whole or any part of the contents of a recording is inadmissible: s 306V(4).

Competence and recorded interviews

If it is submitted at trial that at the time of the recorded interview the vulnerable person (in accordance with s 13(1) Evidence Act 1995) either lacked a capacity to understand a question about the fact, or had an incapacity to give an intelligible answer to a question about the fact, the trial judge is “obliged to make a finding” about the vulnerable person’s capacity at the time of the interview: Tikomaimaleya v R (2017) 95 NSWLR 315 at [54], [56]. For that purpose the judge can observe the recording of the interview itself and also obtain information from other sources in accordance with s 13(8): Tikomaimaleya v R at [56].

See below at [1-378] for the preferred procedure for pre-recorded interviews.

A judge may order that a vulnerable person must not give evidence by means of a recording, but only if satisfied that it is not in the interests of justice for the vulnerable person’s evidence to be given in that way: s 306Y.

Note that these provisions do not apply to complainants in sexual offence proceedings under NSW legislation per se, unless they fall within the definition of a vulnerable person.

Domestic violence complainants

Chapter 6, Pt 4B Criminal Procedure Act 1986 contains specific provisions governing the giving of evidence by domestic violence complainants. These are contained in summary form in the Table at [1-360]. Section 289F enables complainants in domestic violence proceedings to give evidence in chief wholly, or partly, in the form of a recorded statement. A complainant whose evidence in chief is wholly or partly in the form of a recorded statement must be available for cross-examination and re-examination: s 289F(5).

Part 4B operates in addition to the Evidence Act 1995, except where specific exception is made: s 289E. The key exception is the removal of the hearsay and opinion rules insofar as they apply to recorded statements of domestic violence complainants in criminal proceedings: s 289I.

A “recorded statement” is defined as “a recording made by a police officer of a representation made by a complainant when the complainant is questioned by a police officer in connection with the investigation of the commission of a domestic violence offence”: s 289D. Section 3(1) defines a “domestic violence offence” as “a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007”. A “domestic violence complainant” is defined as the person against whom the domestic violence offence is alleged to have been committed, but does not include a vulnerable person: s 3(1). A transcript of the recorded statement may be given to the jury: s 289K.

The preferred procedure for a pre-recorded interview of a witness is set out below at [1-378].

The judge must warn the jury not to draw any inference adverse to the accused or give the complainant’s statement any greater or lesser weight because it is recorded rather than oral: s 289J. See Suggested direction — evidence in the form of a recording at [1-376], which includes a form of words for the warning and where the transcript of the recorded statement is provided to the jury.

Commonwealth sexual offence proceedings

Under s 15YM(1) Crimes Act 1914 (Cth), the court may grant leave for a vulnerable person (including a child witness for a child proceeding: s 15YM(1A)) to give evidence by way of a pre-recorded video in proceedings for Commonwealth sexual offences, as defined in s 15Y. The court must not grant leave if satisfied that it is not in the interests of justice for evidence to be received in this way: s 15YM(2). The person must be available for cross-examination and re-examination if he or she gives evidence in chief by way of video recording: s 15YM(4).

[1-374] Warning to the jury — evidence in the form of a recording

Vulnerable persons

Section 306X Criminal Procedure Act 1986 provides:

If a vulnerable person gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with this Division in any proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way.

The giving of this warning is mandatory: Galvin v R (2006) 161 A Crim R 449 at [56]. In R v NZ at [208], the court expressed the view that the trial judge should also give a warning to the jury as to the caution with which they are to approach the re-playing of the videotape of the evidence in chief of a witness, in the manner suggested by McMurdo P in R v H (1999) 2 Qd R 283:

The judge should also warn the jury that because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case.

If the jury is given a transcript of the recording (expressly permitted under s 306Z), the judge should also warn the jury that the transcript is not evidence and is provided only as an aide-memoir: RELC v R (2006) 167 A Crim R 484 at [32]–[33].

See [1-368] for the preferred procedure where the evidence in chief of a witness has been given by way of pre-recorded interview.

See the suggested direction at [4-377] where the complainant’s evidence in an earlier trial is played in a retrial.

[1-376] Suggested direction — evidence in the form of a recording

The direction below should be adapted to the circumstances of the case.

The law provides that [children/intellectual disabled/cognitively impaired people/domestic violence complainants] may give evidence in a certain way. [This witness’s] evidence, or the main part of it, has been recorded, and we will shortly have the recording played to you.

[If appropriate: after that’s finished, [the witness] will give evidence by CCTV [or other alternative means]. [He/she] won’t actually appear in the courtroom.]

This is standard procedure for [children/intellectually disabled/cognitively impaired persons/domestic violence complainants]. You should not draw any inference against the accused or give the evidence any greater or lesser weight simply because it is given in this manner. You should assess [his/her] evidence in the same way as you would assess the evidence of any other witness.

If a transcript of the recording is provided, add:

The transcript is being provided to you as an aid to your understanding of what you hear when the recording is being played to you and also to help you remember what is in the recording. The primary evidence is the recording itself. If there is any discrepancy between what you hear on the recording and what you see in the transcript, then you should act on what you hear. Transcripts are sometimes difficult to get completely accurate. Much depends upon the quality of the recording. In reality, a transcript is simply someone’s opinion of what they thought they heard when they listened to the recording. As I say, if there is any discrepancy, act on what you hear in the recording and ignore what might well be an error in the transcript.

Warnings in Commonwealth sexual offence proceedings

Section 15YQ(1)(c) Crimes Act 1914 (Cth) provides that the judge is not to warn the jury or suggest to the jury in any way that the law requires greater or lesser weight to be given to evidence that is given by way of a video recording. This does not appear to preclude a direction in the terms suggested above.

[1-378] Pre-recorded interview by witness — preferred procedure

In R v NZ (2005) 63 NSWLR 628, the appellant was convicted of an offence under s 61J (aggravated sexual assault) Crimes Act 1900. At trial, the evidence in chief of the complainant and other child witnesses was given substantially by way of pre-recorded interviews with police officers. Further examination in chief and cross-examination were conducted by way of video link. The videotapes were given to the jury without objection, along with the other exhibits when they retired to consider their verdict.

Although the appeal was dismissed, the Court of Criminal Appeal held that the recording should not have been admitted into evidence and should not have been left with the jury during deliberations: R v NZ at [194]–[195]. The procedure generally to be followed where evidence is given in chief by way of a recording was set out in the following terms at [210]:

(a) 

The videotape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement;

(b) 

Any transcript given to the jury under s 15A should be recovered from the jury after evidence of the witness has been completed;

(c) 

It is for the discretion of the trial judge how a jury request to be reminded of the evidence in chief of the witness should be addressed;

(d) 

It would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed;

(e) 

If the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect that “because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case”;

(f) 

The judge should consider whether the jury should be reminded of any other evidence, for example the cross-examination of the witness at the time that the tape is replayed or sent to the jury room, if that step is considered to be appropriate.

The court emphasised that it did not intend by the above expression of views to lay down any rule of practice or procedure to be followed in every case where the evidence in chief of the witness has been given by the playing of a videotape: R v NZ at [210].

A similar approach was taken by the High Court with respect to corresponding Queensland legislation in Gately v The Queen (2007) 232 CLR 208. In that case it was held that the recording of a witness’s interview with police should not have been admitted as an exhibit: Gately v The Queen at [3], [93]. The court also held that it would seldom be appropriate to give the jury unrestricted access to the recording in the jury room: at [3], [94], [96]. Rather, if the recording is to be replayed, this should take place in court in the presence of the trial judge, counsel and the accused: Gately v The Queen at [3], [96]. Hayne J added that, “depending on the particular circumstances, it may be necessary to warn the jury of the need to consider the replayed evidence in the light of countervailing evidence or considerations relied upon by the accused”: Gately v The Queen at [96].

[1-380] Evidence given via audio visual link

The Evidence (Audio and Audio Visual Links) Act 1998 permits evidence to be taken via audio link or audio visual link from elsewhere in NSW, non-participating States and foreign countries (other than New Zealand) (Pt 1A), or from participating States (Pt 2). Links to New Zealand are dealt with in Pt 4 Evidence and Procedure (New Zealand) Act 1994 (Cth).

The court must not make a direction for evidence to be received by audio link or audio visual link if (ss 5B(2), 7(2)):

  • the necessary facilities are unavailable or cannot reasonably be made available

  • the evidence can more conveniently be made in the courtroom, or

  • the direction would be unfair to the party opposing the direction.

In the case of links from elsewhere in the State, non-participating States and foreign countries (other than New Zealand), an additional basis for refusing a direction is where the court is satisfied that the person in respect of whom the direction is sought will not give evidence: s 5B(2)(d). Furthermore, in cases where the link is proposed from elsewhere in NSW, the court must not make a direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so: s 5B(3). Even where none of the excluding circumstances is established, the court retains a discretion to refuse to make a direction: Australian Securities and Investments Commission v Rich (2004) 49 ACSR 578 at [12].

Evidence may be taken via video link or telephone from New Zealand provided the necessary facilities are available and the evidence can be more conveniently given from New Zealand: s 25(2) Evidence and Procedure (New Zealand) Act 1994 (Cth); Derbas v R [2007] NSWCCA 118 at [35].

As long ago as 1993, Hunt CJ at CL observed that the use of video links “has proved to be very successful from a technical point of view in demonstrating the demeanour of the witness”: DPP v Alexander (1993) 33 NSWLR 482 at 498. The broad acceptance of the use of video-link facilities for taking evidence was more recently recognised in R v Lodhi (2006) 163 A Crim R 488 at [37]. In R v Wilkie [2005] NSWSC 794, Howie J said at [69]:

The simple fact that the witness is not before the court and, therefore, cannot be confronted by the accused is not itself a sufficient reason to refuse to make a direction under the section in a criminal trial. Nor is the simple fact that the video link procedure is deficient to viva voce evidence from the witness in person a sufficient basis for not using the procedure. To reject the application on these grounds would be to act contrary to the intention of the legislature. Section 5A provides that the provisions apply in criminal proceedings and that fact has been specifically, although parenthetically, stated presumably in case any doubt arose about that fact.

In the same case, Howie J held that, in the case of an application for evidence to be received by way of audio visual link from a foreign country, there is no precondition to the making of a direction based on the witness having a good reason for not giving evidence in person: at [12].

Difficulties in transmission — for example, a delay in receipt between image and sound — will not necessarily result in the rejection of evidence sought to be received by way of audio visual link: Derbas v R at [39].

For an overview of the way in which some of the issues pertaining to the use of audiovisual evidence, including the materiality of the evidence, the assessment of credit, management of documents in cross-examination, technological difficulties and the length of cross-examination: see Australian Securities and Investments Commission v Rich at [19]–[43].

It was held in R v Ngo (2003) 57 NSWLR 55, that it was within the discretion of the trial judge to permit two Crown witnesses to give their evidence from outside the courtroom via audio visual link even though the accused was not permitted to view the witnesses while they gave evidence. In order to overcome any prejudicial inference that might be drawn against the accused, a subterfuge was contrived in the form of a non-operating monitor in front of the accused to give the jury the impression that the accused was seeing the same material as the jury. This, too, was held to have been permissible: at [135].

The court in R v Ngo also addressed the question of unfairness under s 5B(2)(c) at [108] (emphasis in original):

Making a direction that the evidence of an accusing witness be received by audiovisual link external to the courtroom must, by its very nature, involve unfairness to the accused because it deprives him or her of a face-to-face confrontation with the witness. The provision cannot mean any unfairness, however small. The Court must consider the degree and effect of the unfairness. In a criminal trial, the best measure is whether the making of a direction will cause the trial to be an unfair one to the accused. An accused person has the fundamental right to a fair trial. A direction should not be made if it would mean that an accused could not have a fair trial.

The option of receiving evidence via audio visual link from outside Australia under s 5B extends to proceedings for Commonwealth offences and does not constitute a breach of s 80 of the Constitution: R v Wilkie (2005) 64 NSWLR 125.

Commonwealth offences

Part I AE Crimes Act 1914 (Cth) governs the taking of evidence by audio visual links in proceedings for Commonwealth terrorism and related offences (as defined in s 15YU). On application by the prosecutor, the court must permit evidence to be given by way of video link unless it would have a “substantial adverse effect on the right of a defendant in the proceedings to receive a fair hearing”: s 15YV(1); R v Lodhi at [48]. The onus is on the defendant to establish that the prosecutor’s application should be refused and there is no obligation on the prosecution to establish a good reason for evidence being taken by video link: R v Lodhi at [51], [61]. On application by the defendant, the court must permit evidence to be given by way of video link unless it would be “inconsistent with the interests of justice”: s 15YV(2). In either case, reasonable notice of the application must be given and video-link facilities must be available. These provisions do not apply to the defendant: s 15YV(1)(d) and (2)(d). A direction or order for the receipt of evidence by audio visual link is subject to appellate review: s 15YZD.

There are also specific provisions in Div 272 Criminal Code Act 1995 (Cth) regarding proceedings for child sex tourism offences. The court may, on application by a party to the proceeding, direct that evidence from a witness (other than the defendant) be taken by video link from outside Australia if satisfied that facilities are available and it is in the interests of justice that evidence be taken in this way. The court must also be satisfied that attendance of the witness at court would cause unreasonable expense or inconvenience, cause the witness psychological harm or unreasonable distress, or cause the witness to become so intimidated or distressed that the witness’s reliability would be significantly reduced: s 272.21. Sections 272.22–272.26 provide for the technical requirements for video link, the application of laws about witnesses, and the administration of oaths and affirmations.

[1-382] Directions/warnings regarding evidence given by audio/audio visual link

New South Wales legislation

There is no NSW legislative requirement for any direction or warning to be given when evidence is received by way of audio or audio visual link. However, in R v Wilkie [2005] NSWSC 794, a case in which the accused opposed the use of the audio visual links for two crucial Crown witnesses whose credit was in issue, Howie J said at [72]–[73]:

It seems to me at this point in the proceedings against the accused that appropriate directions and warnings to the jury would cure much of the asserted prejudice that would flow from the use of audiovisual means of adducing the evidence of the two witnesses. For example, the jury would be told, if it were necessary to do so, that as the credit of the witnesses was a crucial issue in the resolution of the charges against the accused, any difficulty they might encounter in assessing the credibility of the witness by reason of the fact that the evidence was adduced before them by the use of a video link should be resolved in favour of the accused. So if they thought that demeanour might be important and they were having difficulty in properly assessing the demeanour of the witness by the restrictions or limitations placed upon that task because of the use of the video link, that might be a matter that would give rise to a doubt about whether they could rely upon the witness and, therefore, may give rise to a doubt that the prosecution had proved its case.

These directions and any other that the accused thought necessary to address deficiencies in the evidence or the difficulties in cross-examination caused by the video link procedure would simply be to remind the jury of the practical limitations of the onus of proof in the circumstances of these two witnesses giving evidence by video link. Much of the criticism of the procedure overlooks the fact that deficiencies or difficulties encountered with the evidence of the witnesses caused by the use of the video link should rebound on the Crown and the jury simply need to be reminded of this fact in fair but forceful terms.

Proceedings for Commonwealth offences

If evidence is given by way of video link under s 15YV Crimes Act 1914 (Cth) for Commonwealth terrorism and related offences, the judge “must give the jury such direction as the judge thinks necessary to ensure that the jury gives the same weight to the evidence as if it had been given by the witness in the courtroom or other place where the court is sitting”: s 15YZ(1). In R v Lodhi, Whealy J said at [67]:

Section 15YX requires the Court to give such direction as the judge thinks necessary to ensure that the jury gives the same weight to the evidence as if it had been given by the witness in the courtroom or other place where the court is sitting. But in an appropriate case where, for particular reasons, there is a need to remind the jury of the importance of the demeanour of a witness this can be done. Moreover, again in an appropriate case, the jury may be directed to take into account in assessing demeanour any particular matters emerging from the manner in which evidence has been given through the video link. Such a direction would not conflict, in my view, with the direction required by s 15YZ.

There is no corresponding provision with respect to proceedings for child sex tourism offences.

[1-384] Operational guidelines for the use of remote witness video facilities

The NSW Department of Police and Justice has produced “Operational guidelines” for the use of remote witness video facilities: see [10-670]ff.

[1-385] Complainant not called on retrial

When the Crown utilises s 306B Criminal Procedure Act 1986 and does not call the complainant in a retrial the judge should direct the jury that this is usual practice. See [4-377] Suggested direction — complainant not called on retrial. Proceedings will be held in camera unless otherwise ordered: s 291(1). The record does not need to be tendered in camera: s 291(6). See [1-358] Closed courts.