Supreme Court New South Wales Medium Neutral Citation: R v Choi (No 2) [2020] NSWSC 1849 Hearing dates: 16 December 2020 Decision date: 16 December 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) The following Crown witnesses give their evidence in the trial of the accused Chan Han Choi by way of 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): (i) Michael Elleman of Washington DC, United States of America; (ii) David Hoyh of Concord, California, United States of America; (iii) Steve Sin of Alexandria, Virginia, United States of America; (iv) David von Hippel of Oregon, United States of America; and (v) Jason Arterburn of Washington DC, United States of America. Catchwords: EVIDENCE — Audio and audio visual links — Application for witnesses to give evidence by audio visual link — Special provisions for COVID-19 pandemic Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5B, 22C Category: Procedural and other rulings Parties: Regina Chan Han Choi (Accused) Representation: Counsel: J Single SC (Crown) I Jamal (Accused) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Abbas & Co Lawyers (Accused) File Number(s): 2017/380546 Judgment (EX TEMPORE) Introduction 1. The Crown, by notice of motion dated 4 December 2020, has sought orders that certain witnesses be permitted to give their evidence in the trial of the accused Chan Han Choi by way of audio visual link (AVL) from a location outside New South Wales in accordance with s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (the Act). The basis of the application 1. Each of the witnesses is located in the United States of America. Their names and locations are: 1. Michael Elleman, in Washington DC; 2. David Hoyh, in Concord, California; 3. Stephen Sin, in Alexandria, Virginia; 4. David von Hippel, in Oregon; and 5. Jason Arterburn, in Washington DC. 1. The grounds for the application are set out in the affidavit of Samantha Magdalene Wood affirmed on 4 December 2020. In her affidavit Ms Wood sets out the qualifications of each of the persons sought to be called remotely. Each is an expert witness whose expertise is apparent from the affidavit. For example, Mr Elleman is a Senior Fellow from Missile Defence at the International Institute for Strategic Studies and has a specialised knowledge with respect to missiles and rocketry, as well as the missile systems of North Korea. The other witnesses also are experts who would appear to be qualified to give expert evidence in the trial on matters arising from the charges against Mr Choi. 2. Section 5B of the Act empowers the Court to order that evidence can be taken from outside the courtroom or a place where the Court is sitting. That is the basis on which the Crown's application is made. However, s 22C of the Act also provides for evidence to be given remotely by reason of the COVID-19 pandemic. Section 22C(4) of the Act provides that the appearance in any proceedings of a witness may take place by way of AVL if the Court directs. Section 22C(6) provides that the Court is to make a direction only if it is in the interests of justice having regard to the following: the public health risk posed by the COVID-19 pandemic, the official use of available judicial and administrative resources, any relevant matter raised by the parties and any other matter the Court considers relevant. I can take judicial notice of the circumstance that the COVID-19 pandemic is widespread in the United States of America and the risk of infection to individual persons in that country remains, regrettably, very high. This is to be contrasted with the situation in Australia where the infection rates are relatively low. Consideration 1. I am satisfied, on the basis of the material attached to Ms Wood's affidavit and on the basis of matters of which the Court can take judicial notice, that if the witnesses referred to above obtained a travel exemption from the Commonwealth Government, which would be required, they would be required to quarantine for two weeks before they would be allowed into the Australian community. Their coming to Australia would necessarily pose a risk to the local population here. 2. Mr Jamal, who appears on behalf of the accused, has indicated that the accused consents to the evidence being given remotely, although there are still discussions to be had about the conditions under which that would occur. I am satisfied that it is very much in the interests of justice, not to mention in the interests of public health, to make the order sought under either s 5B or s 22C(4) of the Act. 3. I note that, under s 5B, I am not to make a direction if the necessary facilities are unavailable or cannot reasonably be made available, or if I am satisfied that the evidence can be more conveniently given in the courtroom, or that I am satisfied that the direction would be unfair to any party to the proceedings or I am satisfied that the person in respect of whom the direction is sought will not give evidence. 4. I am satisfied on the basis of Ms Wood's affidavit that the necessary facilities are either available or can be reasonably made available. I am not satisfied that the evidence can more conveniently be given in the courtroom. Indeed, it would seem overwhelmingly more convenient that the evidence be given remotely. I am not satisfied that the direction would be unfair to any party to the proceedings. Indeed, I am satisfied that there is no compromise to the fair trial of the accused. I am influenced in that finding by the approach taken by the accused through his legal representative, Mr Jamal. I have no reason to suspect that any of the expert witnesses who have been retained by the Crown to give expert evidence will not give evidence through AVL. Indeed, that would appear to be their overwhelming preference. Order 1. For the reasons given above, I make an order in terms of prayer 1 of the notice of motion dated 4 December 2020 as follows: 1. The following Crown witnesses give their evidence in the trial of the accused Chan Han Choi by way of 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): 1. Michael Elleman of Washington DC, United States of America; 2. David Hoyh of Concord, California, United States of America; 3. Steve Sin of Alexandria, Virginia, United States of America; 4. David von Hippel of Oregon, United States of America; and 5. Jason Arterburn of Washington DC, United States of America. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2020