District Court New South Wales Medium Neutral Citation: SafeWork NSW v Astute Earth Works Pty Ltd [2023] NSWDC 12 Hearing dates: 3 February 2023 Date of orders: 6 February 2023 Decision date: 06 February 2023 Jurisdiction: Criminal Before: Scotting DCJ Decision: (1) Pursuant to s 5B Evidence (Audio and Audio Visual Links) Act 1998, I direct that the witness Kugenthiran Arumugam's evidence be taken by audio visual link from Sri Lanka. Catchwords: EVIDENCE – Character evidence - taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 Work Health and Safety Act 2011 Cases Cited: Anton v Bokan (No 2) [2019] NSWCA 250 B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 Bayer AG v Minister for Health of the Commonwealth of Australia (1988) 96 FLR 50 Laporte Group Australia Ltd v Vatselias (unreported, 15 November 1991, NSWSC, Young J) R v Ngo (2003) 57 NSWLR 53 R v Wilkie [2005] NSWSC 794 Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, 11 March 1997, NSWSC, Giles CJ Comm D) Category: Procedural rulings Parties: SafeWork NSW v Astute Earth Works Pty Ltd Representation: Counsel: M Cahill (Prosecutor) M Sahade (Defendant) Solicitors: Legal, Corporate Services, Department of Customer Service (Prosecutor) Sadek Lawyers (Defendant) File Number(s): 2021/234801 2021/234811 Publication restriction: None RULING Introduction 1. Astute Earth Works Pty Ltd (the defendant) has pleaded not guilty to offences under the Work Health and Safety Act 2011 (the Act). 2. The matter is listed for hearing for 15 days commencing 13 February 2023. 3. The prosecutor seeks a direction pursuant to s 5B Evidence (Audio and Audio Visual Links) Act 1998 to permit one of the injured workers, Kugenthiran Arumugam, to give evidence by audio visual link from his home in Sri Lanka. 4. The direction is opposed by the defendant. 5. The prosecutor relied on four affidavits of Vivian Wei, solicitor, affirmed on 22 December 2022, 16 January 2023, 1 February 2023 and 2 February 2023. No objection was taken to the evidence and Ms Wei was not required for cross-examination. Background 1. On 21 August 2019 at a building site in Vineyard, Mr Arumugam and Prasanth Thirucelvamaran were lifted in the upturned bucket of an excavator to perform demolition work at height. The workers were provided with no fall protection. The bucket detached from the excavator and the workers fell to the ground suffering injury. 2. It is alleged that the defendant had a pre-existing relationship with Mr Arumugam and other workers and would engage them by sending a text message to Mr Arumugam telling him where the workers should report for work. These messages were sent by Ramzi Mohamed, the sole director and shareholder of the defendant. The workers were usually paid in cash by Mr Mohamed. 3. On or about 20 August 2019, Mr Arumugam reported for work at the Vineyard site and was inducted by a supervisor employed by the principal contractor, Apex Building Systems Pty Ltd (Apex). Mr Arumugam expected to be paid in cash at the completion of the work. Mr Mohamed was present at the site when the work was being undertaken. 4. Greater Civil Pty Ltd (Greater Civil) had a contract with Apex to perform the demolition work. The work being conducted at the time of the incident was being performed pursuant to that contract and it was being directed by Mr Hamza Taleb of Greater Civil. 5. The main issue in the proceedings is whether or not Mr Arumugam and Mr Thiruchelvamaran were workers at work in the business or undertaking of the defendant at the time of the incident. Mr Arumugam's evidence is central to the resolution of this issue. 6. Mr Arumugam is a citizen of Sri Lanka and of Tamil extraction. He currently resides in Kalumnai, a city about 7 hours and 30 minutes' drive from Colombo. He came to Australia in 2010 on a bridging visa. While in Australia he applied for a refugee visa. That application was unsuccessful and he returned to Sri Lanka. 7. Mr Arumugam would require a visa to enter Australia. It is unclear if he would be granted a visa. He may be eligible for a criminal justice visa, but no application has been made for one on his behalf. The final decision on the issue of any visa rests with the Department of Home Affairs. 8. Mr Arumugam is married and his wife is pregnant. She is due to give birth on 20 February 2023. 9. As a result of the injuries that Mr Arumugam suffered in the incident, he remains under the care of treating doctors in Sri Lanka and is in receipt of regular medical treatment. 10. Mr Arumugam has indicated that he is willing to give evidence by audio visual link from Sri Lanka. He will require a Tamil interpreter. The time in Kalumni is 5 hours and 30 minutes behind Australian Eastern Daylight Saving Time. It will be necessary to amend usual court sitting times if the direction is made. 11. The prosecutor conducted a successful conference with Mr Arumugam on 1 February 2023, using Microsoft Teams. The use of this application permitted Mr Arumugam to be shown electronic copies of documents for his comment. During the conference, Mr Arumugam could be seen and heard with minimal distortion and all parties, including a Tamil interpreter, could participate simultaneously in the conference. There was some disruption to the connection at the end of the conference. 12. It is proposed to call Mr Arumugam to give evidence on 14 and 15 February 2023. It will be necessary to show him documents during the course of his evidence. It is not anticipated that the authenticity of the documents will be in dispute. 13. It is common ground that Mr Arumugam's credit will be in issue. 14. Mr Arumugam cannot be served with a subpoena and is not compellable to give evidence. The prosecutor has not sought to issue letters of request through the appropriate authorities. There was no evidence that Sri Lanka is a signatory to the relevant treaties. 15. The prosecutor has taken steps to have an independent solicitor present during Mr Arumugam's evidence, but that will no longer be possible due to the unavailability of the solicitor and the inability to find an alternative. Relevant Law 1. Section 5B Evidence (Audio and Audio Visual Links) Act 1998 relevantly provides: (1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting. (2) The court must not make such a direction if-- (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or (c) the court is satisfied that the direction would be unfair to any party to the proceeding, or (d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission. 1. In Anton v Bokan (No 2) [2019] NSWCA 250, Bell P (as his Honour then was), with whom Bathurst CJ and Payne JA agreed, stated: 38 The effect of s 5B of the Evidence (AVL) Act is that, whilst the court has a discretion whether or not to permit evidence to be given by video link, the court must not make such an order if satisfied that a direction to allow such a course would be unfair to a party. … 50 Constraining a party to cross-examining a witness by video link will not always, but may sometimes, involve a degree of unfairness to that party, depending on all the circumstances of the case. This is why an assessment of unfairness necessarily involves a judgment of an evaluative character. Relevant circumstances may include the importance of the witness, whether his or her credit was in issue, the nature and extent of documents involved, whether translation of documents or oral evidence is necessary, time differences in the other forum and the quality of technology. In certain cases, depriving the cross-examiner of the "reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party" may also work relevant unfairness: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 at [78]. 1. In R v Ngo (2003) 57 NSWLR 53 the Court of Criminal Appeal dealt with an appeal from a decision to give the direction that permitted witnesses who had fears for their safety to give evidence by audio visual link from within a place in NSW (thus requiring the satisfaction of s 5(3) which is not relevant in the present case) and on the basis that the accused was not permitted to see the witness on the screen. The Court relevantly stated: 108 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 an 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. … 118 In approaching the issue of unfairness to an accused, it is reasonable to start with the proposition that confrontation is a fundamental right of an accused, who is entitled to see and know the identity of his accusers. Yet, as observed by the House of Lords in R v Governor of Brixton Prison, there is clearly tension between this right and the discretionary decision that may be made to erode that right. 119 The right is by no means an absolute one and it has been accepted for a considerable time that misconduct of an accused can lead to a waiver of the right. Even in the U.S., where the right of confrontation is entrenched in the Sixth Amendment, the Supreme Court has held that the right to a face to face trial with witnesses is not absolute. In England and Wales the right to face to face confrontation is also not an absolute one. The same appears to be the position in Canada and New Zealand. 120 Not infrequently jurisdictions have enacted legislation which has the effect of eroding the right to confrontation. Statutes concerning the receipt of the evidence of children in sexual cases are an example. The protection of informers is another. Advances in technology have also spawned legislation permitting the receipt of evidence by live audio and video link. The subject Act is one such example. The Act seeks to temper the effect that the provision of remote evidence may have on a trial and on its participants, by outlining prerequisite considerations and protections to any such direction. The unfairness precondition in s 5B(2)(c) is one such protective mechanism, particularly important in a criminal trial. Consideration 1. Taking into account all of the evidence and balancing the relevant considerations, I am satisfied that I should make the direction for Mr Arumugam to give evidence by audio visual link from Sri Lanka, for the reasons that follow. 2. There are good reasons for Mr Arumugam's inability to return to Australia to give evidence in these proceedings. His wife is pregnant and due to give birth during the allocated hearing dates. He continues to suffer from the injuries that he sustained in the incident and he is still receiving medical treatment in Sri Lanka. 3. I am satisfied that it would be very difficult for Mr Arumugam to get a visa, including a criminal justice visa. It was alleged by the defendant in its submissions that Mr Arumugam was in breach of the conditions of his bridging visa while in Australia and I am satisfied that if that were true that it would make it very difficult for him to obtain a visa to enter Australia. The prosecutor is not a person that can apply for a criminal justice visa and I am satisfied that the application process could not be resolved before the allocated hearing dates. 4. The evidence of Mr Arumugam is very important to the prosecution case. There is presently no means for the prosecution to compel Mr Arumugam's attendance to give evidence. 5. It was submitted on behalf of the defendant that Mr Arumugam's credit will be in issue and that the vast bulk of his evidence is challenged. It was contended that allowing Mr Arumugam to give evidence on his mobile telephone in the comfort of his own home would fail to convey the gravity of the situation and would deprive the Court of the means to impress on him the need to tell the truth. I do not accept this submission. I am not satisfied that just because the direction is made that Mr Arumugam will not take the proceedings seriously. His attitude towards giving his evidence will be important, but that cannot be assessed until he does give evidence. 6. The law is clear that a witness' credibility is primarily determined by an assessment of their evidence by reference to objectively proven facts and other credible evidence. Whilst demeanour plays some part in assessing a witness' credit, it is a relatively minor part. Even so, the effect of the authorities is that there is very little diminution of a jury's ability to assess demeanour when the evidence is giving by audio visual means: R v Wilkie [2005] NSWSC 794 at [32] (Howie J). Further, the courts have decided on a number of occasions that the demeanour of a witness could be adequately assessed where the evidence was given by audio visual link: Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, 11 March 1997, NSWSC, Giles CJ Comm D), Bayer AG v Minister for Health of the Commonwealth of Australia (1988) 96 FLR 50; Laporte Group Australia Ltd v Vatselias (unreported, 15 November 1991, NSWSC, Young J); B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95 at 108. 7. On the evidence, it is unlikely that the need to ask Mr Arumugam about documents in the case will be the source of any difficulty. 8. Mr Arumugam requires the assistance of an interpreter. I am satisfied that the use of the Microsoft Teams application will permit the simultaneous involvement of the interpreter in a way that will be satisfactory. 9. Mr Arumugam has made a number of statements to SafeWork Inspectors in the course of the investigation. The defendant accepts that if this application is unsuccessful that Mr Arumugam would be unavailable and that it is likely that the Court would admit those statements pursuant to s 65 Evidence Act 1995. The defendant submits that this would be the preferred course because it could make submissions on the weight that could be placed on those statements. Contrary to that submission, I am satisfied that it will be fairer to the defendant to give the direction, so that it can cross-examine Mr Arumugam to test his evidence and so that it will not lose the opportunity to make any submission it wants as to the appropriate weight to be given to the evidence, if he is called as a witness. 10. The proceedings are to be heard summarily and the likelihood of the defendant suffering prejudice by reference to the means of taking the evidence is very low. The Court, as the trier of fact, is required to identify and heed the warnings that would be ordinarily given to a jury. 11. On the evidence, the quality of the technology to be used appears to be satisfactory. I expect that there could be some loss of connectivity with the potential to cause minor inconvenience to the process of taking Mr Arumugam's evidence. 12. The Court's experience of taking evidence by audio visual link has progressed significantly as a consequence of the need for the justice system to continue to operate during the COVID-19 pandemic. The statements in the authorities decided before the onset of the pandemic must be considered against the present reality of the convenience and frequency of the use of audio visual links in the justice system. 13. Overall, whilst I accept that there will be some unfairness to the defendant, I am satisfied that it will not result in an unfair trial. The offences alleged are serious and there is a considerable public interest in permitting the prosecutor to call the evidence and giving the injured worker the opportunity to participate in the proceedings. Orders 1. The orders I make are: 1. Pursuant to s 5B Evidence (Audio and Audio Visual Links) Act 1998, I direct that the witness Kugenthiran Arumugam's evidence be taken by audio visual link from Sri Lanka. ********** 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: 06 February 2023