Land and Environment Court of New South Wales CITATION : Filipowski v Hemina Holdings S. A. ; Filipowski v Rajagopalan [2009] NSWLEC 67 LEC No. 50059 of 2008 PROSECUTOR: Barbara Filipowski DEFENDANT: Hemina Holdings S. A. PARTIES : LEC No. 50060 of 2008 PROSECUTOR: Barbara Filipowski DEFENDANT: Swaminathan Rajagopalan FILE NUMBER(S) : 50059 of 2008 and 50060 of 2008 CORAM: Lloyd J KEY ISSUES: PRACTICE AND PROCEDURE :- application to adduce evidence by video link - extensive documentary cross-examination - costs of attending - application refused LEGISLATION CITED: Uniform Civil Procedure Rules 2005 r 31.3 CASES CITED: Australian Medical Imaging Pty Limited v Marconi Medical Systems Australia Pty Limited (2001) 53 NSWLR 1 R v Wilkie (2005) 193 FLR 291; [2005] NSWSC 794 DATES OF HEARING: 22 April 2009 EX TEMPORE JUDGMENT DATE : 22 April 2009 PROSECUTOR: R A Dick (barrister) SOLICITORS: Dibbs Barker Lawyers LEGAL REPRESENTATIVES: DEFENDANTS: E G H Cox (barrister) SOLICITORS: HWL Ebsworth Lawyers JUDGMENT: - 4 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Wednesday, 22 April 2009 LEC Nos. 50059 of 2008 & 50060 of 2008 FILIPOWSKI v HEMINA HOLDINGS S.A.; FILIPOWSKI v RAJAGOPALAN [2009] NSWLEC 67 EX TEMPORE JUDGMENT Application to receive evidence by video link 1 HIS HONOUR: The defendants in these two prosecutions apply by way of notice of motion for an order that the evidence of the defendant, Captain Swaminathan Rajagopalan and a witness, Mr Abhay Bhonge, be received by video link. The court has jurisdiction under r 31.3 of the Uniform Civil Procedure Rules 2005 to order that evidence be received by video link or other form of communication. The rule applies to criminal proceedings in this court. 2 In support of the application there is an affidavit filed by the solicitor for the defendants setting out the reasons for the order sought. In the case of Captain Swaminathan Rajagopalan, he is the trade manager for South and East India for MSC Agency (India) Pvt. Limited. He resides and works in Mumbai, India and according to the affidavit, MSC have video conferencing facilities which can be utilised by the defendant to give his evidence from Mumbai. 3 In the case of Mr Bhonge, he is a technical manager, Fleet A, for MSC Ship Management (Hong Kong) Limited and resides and works in Hong Kong. Again, it seems that MSC Ship Management have video conferencing facilities in-house. 4 There are two reasons advanced for seeking the evidence of the defendant captain to be given by video link. The first is that he has a heavy workload during the week commencing on 25 May 2009, being the date upon which the trial is to begin, as he is scheduled to attend meetings with his principals in the following week. The second reason is the cost of attending. Estimates of the cost of return business class airfares and of accommodation in Sydney for three days have been given. In the case of Mr Bhonge, he does not appear to have any particular commitments which would make it difficult for him to attend the trial but, again, there is evidence of the cost of return business class airfares and of accommodation in Sydney for three days. 5 The application for receiving the evidence by video link is opposed by the prosecutor. According to the prosecutor, there are issues of credit, at least in relation to the defendant captain. The issues which will be addressed in his cross-examination are: (i) the nature and the volume of the oil spill in question including the captain's estimate of the size of the slick and his repeated description of it as a sheen rather than thick black fuel oil; (ii) whether at the relevant times it was apparent that the discharge of oil came from the ship in question and the response which should have been undertaken by the captain; (iii) whether the captain has accurately and comprehensively set out the relevant events on the day in question including steps taken to address the discharge; (iv) the reasonableness of the captain's decision to cease the transfer of fuel oil from the starboard fuel tank to the port fuel tank on 10 January 2006 and the time this step was taken; (v) the time that the leakage of oil from the starboard fuel tank on the ship ceased; (vi) aspects of the captain's description of the interview he had with Mr Heath of Sydney Ports Authority; and (vii) overall, the reasonableness of the captain's response to the discharge. 6 In relation to the evidence of Mr Bhonge, the prosecutor wishes to cross-examine him as to the opinion he proffered relating to the prudence of transferring fuel from the starboard fuel tank to the port tank; the circumstances in which such a decision should be made; and the conclusions which can be drawn as to the physical condition of the ship on the relevant date. The prosecutor also intends to cross-examine Mr Bhonge with a considerable amount of documentary material - a task, it is said, that may be made unsatisfactory if that is done via video link. 7 The relevant principles are that, in general, it must be assumed that overseas witnesses required for cross-examination in a trial will attend the court in person to give evidence: see, for example, Australian Medical Imaging Pty Limited v Marconi Medical Systems Australia Pty Limited (2001) 53 NSWLR 1. In R v Wilkie (2005) 193 FLR 291; [2005] NSWSC 794, Howie J held at [10] that: There is authority that suggests that audiovisual evidence should only be allowed where good reason exists for the failure of the witness to attend the proceedings in person. 8 The case of Australian Medical Imaging Pty Limited v Marconi Medical Systems Australia Pty Limited was a civil case. In R v Wilkie it was a criminal case. 9 I am of the opinion that there is an opportunity for a greater degree of flexibility in civil cases than in criminal cases and where major issues of credit and, in particular, documentary material of some quantity and/or complexity is likely to be deployed in the court, it is preferable to have the witness in court for cross-examination. The only reasons given for the non attendance of the defendant captain are, in addition to the cost, the fact that he has business commitments in Mumbai the following week. There seems to be no reason why he could not prepare for those business commitments in the week preceding the trial rather than during the week of the trial. 10 Again, the only reason for the non attendance of Mr Bhonge is cost of attending. In the context of a criminal prosecution where the penalties are substantial the cost in the overall scheme of things is not very great. 11 I note that I have in the past received evidence by video link in criminal proceedings, but on each occasion this has been by consent. In the absence of consent and where the reasons for the request are not strong, I do not believe that the prosecutor should be deprived of the opportunity of cross-examining the witness in person. 12 I am, therefore, not persuaded that the evidence should be given by video link in this instance. I am also informed that it is likely that the trial will take three days rather than the two days that have been set aside and the court will accordingly reserve three days for the trial. 13 The final orders are: (1) The defendants' notice of motion dated 14 April 2009 for the receiving of evidence via video link is dismissed. (2) The defendants must pay the prosecutor's costs of the notice of motion. (3) Note that the hearing is listed for three (3) days commencing 25 May 2009. I hereby certify that the preceding 13 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate *************** 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.