Reported Decision : 124 A Crim R 151 New South Wales Supreme Court CITATION : R v Ngo; Dinh; Dao [2001] NSWSC 339 CURRENT JURISDICTION: Common Law Division Criminal FILE NUMBER(S) : SC 70086/98; 70059/99; 70223/98 HEARING DATE(S) : 19 & 20 April 2001 JUDGMENT DATE : 4 May 2001 Regina PARTIES : Phuong Canh Ngo - Accused David Duy Thai Dinh - Accused Tu Quang Dao - Accused JUDGMENT OF : Dunford J Mr M.A.G. Tedeschi QC / Mr R.A. Hulme - Crown COUNSEL : Mr J.C. Nicholson SC / Mr P.J. Pearsall - Ngo Mr R. Hoenig - Dinh Mr G.J.T. Cusack QC / Ms B.J. Rigg - Dao S.E. O'Connor - Crown SOLICITORS : L.M.G. Solicitors & Attorneys - Ngo Legal Aid Commission of NSW - Dinh Jackson Smith, Solicitors - Dao CATCHWORDS : CRIMINAL LAW & PROCEDURE - evidence - application for witnesses to give evidence by video-link - witnesses scared of accused Evidence (Audio and Audio Visual Links) Act 1998, ss 5(1A), 5A, 5B, 20A LEGISLATION CITED : Evidence (Audio and Audio Visual Links) Amendment Act 2000, no. 16, Sch 1[5] SCR, Pt 36 r 2A, Pt 75 r 8 R v McHardie and Danielson [1983] 2 NSWLR 733 R v Smellie (1919) 14 Cr App R 128 CASES CITED : R v DJX and ors (1990) 91 Cr App R 36 R v Sparkes (Supreme Court of Tasmania - unreported 1 October 1996) R v West (1990) 51 A Crim R 317 DECISION : See para 27. THE SUPREME COURT Revised for Internet OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL DUNFORD J Friday, 4 MAY 2001 70086/98 - R v Phuong Canh NGO 70059/99 - R v David Duy Thai DINH 70223/98 - R v Tu Quang DAO JUDGMENT 1 HIS HONOUR: Application was made by the Crown for two witnesses, Mr and Mrs L, to give evidence from a remote location by video-link in circumstances where their facial features could not be observed by the accused. 2 Evidence was taken on the voir dire and submissions made on 19 and 20 April. On 23 April I granted the application and indicated that I would give my reasons later. The evidence was duly given by video-link on 24 April and I now publish my reasons for granting the Crown's application. 3 It was anticipated (as in fact turned out to be the case) that the witnesses would say that two nights before the death of the deceased they were travelling in their motor vehicle in Judith Avenue, a street behind Woods Avenue where the deceased was shot outside his home. They drove from Bowden Street, turned right into Judith Avenue and saw a white four door sedan parked on the left hand side of that street about two metres from the corner, which would be very close to the back of the deceased's home in Woods Avenue; and outside the vehicle they saw a person they recognised as the accused Phuong Ngo whom they knew because of his position as a councillor in the area, where he had received publicity in the local newspapers and on television. Their description of the car as a white four door sedan is consistent with the white Camry owned by the Mekong Club and generally driven by the accused Phuong Ngo. 4 They each swore an affidavit on which they were cross-examined as to their reasons for wanting to give evidence by video-link from a remote location, and in effect they said that they were scared, not only for themselves but also for their family. They each gave evidence at the Coronial Inquest into the death of John Newman and it appears that Mr L became visibly upset when cross-examined by counsel for the accused Phuong Ngo, notwithstanding that the accused was not present at the time; and his evidence in this regard was confirmed by the evidence of Superintendent Kaldas, the officer in charge of the case, who was present at the inquest and said that after Mr L ascertained that the person asking him questions was appearing for Phuong Ngo he appeared visibly shaken and he could see that he was quite upset. Mrs L also said that she was frightened. 5 Some days after the inquest Mrs L observed a vehicle parked outside their house late at night whilst her husband was at work. She described the persons in the vehicle as Asians. They apparently did not get out of the car, she could see no reason for them to be there and it seems that the vehicle was parked there for approximately 3 hours. She also said that there had recently been telephone calls inquiring whether their house was up for sale and asking whether their surname was as it is. As the house has not been on the market this has caused them additional concern. 6 As Mrs L put it, "I'm in fear just in case these people get acquitted and get released and then I would be really fearful for my own safety", and she was also concerned for the safety of her family. She said that if directed by the judge to give evidence, she would be very reluctant to give evidence. Her husband said that "If he (Phuong Ngo) was there, I would not be game enough to give evidence". They do not know of either of the other accused, but Mr L said he would be reluctant to give evidence in front of any of the accused. 7 Mrs L herself appeared very concerned and apprehensive when brought into the courtroom to give evidence on the voir dire, and it was only when she was assured that the accused were not present, and she was able to look at the dock and see for herself that they were not there, that she came forward to the witness box. 8 Pursuant to a ruling by Wood CJ at CL on 16 July 1999, both the witnesses were permitted to give evidence in the previous trial by video-link in circumstances where the only video screen in the court was located behind the accused and was visible to the jury, but not to the accused who were directed not to turn around and look at it. A video monitor was placed in front of the accused without any picture so that the jury would be under the impression that they had their own monitor to watch. To facilitate this operation the court transferred to another courtroom where this configuration was possible and the jury was told this was for technical reasons or something of that nature. 9 Although that ruling was given on virtually the same evidence as is presently before me, it is necessary for me to consider the evidence afresh for two reasons. Firstly, because as the decision involves elements of discretion it is incumbent on me to exercise my discretion afresh and not merely to follow the Chief Judge's exercise of discretion on an earlier occasion; and secondly, because there has been some legislative changes since the earlier decision. 10 The law as it stood in July 1999 was, in my respectful opinion, correctly summarised by Wood CJ at CL by his judgment at pp 2 to 3 as follows: "The Supreme Court Rules Part 36 r2A(1) permit directions for evidence to be given by any audio-visual method. This rule applies, by reason of Supreme Court Rule Part 75 r22(7) and the Third Schedule, to proceedings in the Court for the prosecution of indictable offences. The grant of leave for the giving of evidence by this means is discretionary. It depends upon an assessment whether the making of a direction for the use of a video-link would advance the course of justice: Park v Citibank Savings Ltd (1993) 31 NSWLR 219 at 225. It is not to be overlooked, in this respect, that the interests of justice favour the reception of all available and relevant evidence in a criminal trial, and that a fair trial is one that is fair both to the State as well as the accused: McKinney (1991) 171 CLR 468 at 488, and Lowe (1997) 98 A Crim R 300 at 318-319. There is precedent for the use of video-link in criminal trials in other jurisdictions: Hyuk Kye Kim (Supreme Court VIC 17 October 1998, Caldrey J,) as well as in New South Wales Bryant (Supreme Court New South Wales, Hidden J, May 1999). In weighing this option, it needs to be borne in mind that the practice of requiring witnesses to give evidence orally, and to be confronted in the presence of the jury, ought not to be waived lightly. Considerations such as the quality of the image, the size of the screen and the like need to be given proper weight." 11 At that time the Evidence (Audio and Audio Visual Links) Act 1998 did not apply in the circumstances of this case as both the witnesses were present in New South Wales. This limitation has now been lifted by the Evidence (Audio and Audio Visual Links) Amendment Act 2000, no. 16, Sch 1[5] and the relevant parts of the Act apply to any proceedings (including criminal proceedings) in or before a New South Wales Court: s 5A(1). 12 Section 5B provides that the court may direct that a person give evidence etc by audio visual link from any place "within or outside New South Wales", other than the courtroom at which the court is sitting, but 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 by a party opposing the making of the direction that the direction would be unfair to the party, 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; and the court must not make such 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), while s 5(1A) provides that the Act is not intended to exclude or limit the operation of any other law of this State that makes provision for the taking of evidence or making of submissions in this State for the purposes of a proceeding in the State. 13 Section 20A (the former s 8) provides that evidence can only be given by audio visual link if the courtroom and the place where the evidence would be given are equipped with audio visual link facilities that enable: (a) persons who are at the courtroom or other place to see and hear the person giving the evidence or making the submission, and (b) persons who are at the place where the evidence is given or the submission is made to see and hear persons at the courtroom or other place. 14 It was conceded that the quality of the video image and of the audio link is first-class, that the demeanour of the witnesses would be clearly visible to the jury and that their words and those of any interpreter used by them would be clear, or at least as clear as they would be if the evidence were given in the courtroom. 15 There may be some justification for the fears expressed by the witnesses, although there is no evidence that any of the occurrences giving rise to their fears are in any way referable to any of the accused. But irrespective of whether there is any cause or justification for their fears, I am satisfied that their fears are genuinely held and that they probably would not give the evidence if they were required to do so face to face in the courtroom in the presence of the accused. I am also satisfied that even if they did give the evidence, because of their fears, rightly or wrongly but genuinely held, they would not justice do to themselves as witnesses and it is therefore in the interest of the administration of justice to make the order. 16 The evidence, if accepted by the jury could be a significant part of the circumstantial case against the accused Phuong Ngo. 17 Section 5B(2)(c) requires that I must be satisfied that the giving of the evidence in this matter would not be unfair to any of the accused. Mr Nicholson SC on behalf of the accused Phuong Ngo, whose submissions were supported by counsel for the other accused, submitted that giving evidence in this way would be unfair to the accused because the images on the screen would be larger than life, giving emphasis to their evidence as compared with that of other witnesses. I do not consider this to give rise to any unfairness because, although the images may be larger than life, the evidence will lack the immediacy that would be present if the witnesses were present in the courtroom. 18 His other and more substantial objection on this issue was that as Mr L said he had met Phuong Ngo, and both said they were familiar with him because of the appearance of his image in newspapers and on television, there were issues of identity involved, and that therefore Phuong Ngo should be entitled to see the person giving evidence against him in this regard, because to do otherwise would deny him the opportunity to properly contest that evidence. I gave this submission serious consideration, but ultimately rejected it because the issue is not whether Phuong Ngo could identify the witnesses, but whether the witnesses could identify Phuong Ngo. As a councillor and prominent local identity it is apparent that Phuong Ngo would have met many of the local citizens, and it would not be expected that he would remember them all, and I have no doubt that Mr L would come into this category. 19 Mr Hoenig on behalf of the accused Dinh submitted that there should be nothing different about the conduct of this trial from the usual run of other trials because otherwise an inference may be drawn by the jury that the witnesses have some fear of the accused and therefore some reason to fear them. Not only was such a suggestion sheer speculation, but I was satisfied that the possibility could be avoided by an appropriate explanation along the lines of "technical reasons" or similar. 20 The general rule is that a normal criminal jury trial provides for the presentation of the Crown case in the presence and hearing of the accused and this procedure is correctly described as a "right": R v McHardie and Danielson [1983] 2 NSWLR 733 at 739. The accused should normally be able to confront his or their accusers and this cannot occur if the witnesses or their image cannot be seen by the accused. But exceptions have been made in a number of cases to prevent the accused seeing the witnesses or vice versa, apart from cases in which special statutory provisions such as the Evidence (Children) Act 1997 applied. 21 For example, in R v Smellie (1919) 14 Cr App R 128, the accused was ordered to sit on the stairs going out of the dock, out of sight of the complainant while she gave her evidence and Lord Coleridge J giving the judgement of the court said, "If the judge considers that the presence of the prisoner will intimidate a witness there is nothing to prevent him from securing the ends of justice by removing the former from the presence of the latter". 22 In R v DJX and ors (1990) 91 Cr App R 36 and in R v Sparkes (Supreme Court of Tasmania - unreported - 1 October 1996) a screen was erected between the witness and the accused so that the accused could not see the witness and vice versa although the accused could hear everything that was said. In the former case the Lord Chief Justice said at 41: - "We take the view that we do not need authority to confirm us in the view that what the learned Judge here did in his discretion was a perfectly proper, and indeed a laudable attempt to see that this was a fair trial: fair to all, the defendants, the Crown and indeed the witnesses." 23 A screen was also used in R v West (1990) 51 A Crim R 317 but that was pursuant to express statutory authority. In my opinion this was a similarly exceptional case for the accused to be able to hear but not see the witnesses and the arrangements proposed for the giving of the evidence by audio visual link and the placement of the audio visual screen out of sight of the accused constituted a much less obvious, and therefore less prejudicial, procedure than the placing of screens within the courtroom. 24 Section 20A(a) requires that persons in the courtroom must be able to see and hear the person giving the evidence and vice versa. I am satisfied that the facilities in the present case will be such so that everyone in the courtroom, except the accused, will be able to see and hear the witnesses, and the accused will be able to hear them though not see them. Section 20A is a general provision and it refers to persons in the courtroom in general, without specifying any particular persons in the courtroom, and it does not in terms require that each party must be able to see the witness. 25 Moreover, the Act is not to exclude or limit any other law for the provision for the taking of evidence in this State, and so is not to be interpreted as limiting the operation of Part 36 r 2A of the Supreme Court Rules. Those Rules still apply and they do not require that every person including every accused be able to see, as well as hear, the witnesses. Part 75 r 8 prevents an order being made under Pt 36 r 2A preventing an accused from "attending" any part of the proceedings, except with his or her consent, but there is no requirement in the rule that the accused must be able to "see" each of the witnesses. 26 Mr Cusack QC made a further submission to the effect that to allow this evidence to be given by video-link would "open the floodgates" so as to permit any witness who was reluctant to confront an accused in person in the courtroom to seek to have a similar order made. I do not regard the provisions as being open to such a broad interpretation and the exercise of the power to order prosecution evidence in criminal trials to be given in this way must be carefully circumscribed. On the other hand, this trial has been described as "high profile". A politician was shot dead outside his home and the Crown allegation is that it was organised by the accused Phuong Ngo for his own political advancement. It is therefore most desirable that in a case such as this all available evidence is placed before the jury so that, so far as possible, the facts may be properly and correctly ascertained. I am satisfied that this was an appropriate case to make an order similar to that made by Wood CJ at CL on the earlier occasion. 27 It is for these reasons that I gave the direction for the evidence of both witnesses to be given from a remote location by video-link and directed that the hearing be transferred to courtroom no. 7 so that the screen was directly above the accused where it could be seen by the jury, but not by the accused. I also directed the accused not to turn around to look at the screen and that a "dummy" screen be placed in front of the dock so that it would appear the accused were watching the witnesses on such screen. The evidence was given in accordance with these directions. -------- Last Modified: 07/13/2001 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.