New South Wales Supreme Court CITATION : Regina v MTN; Regina v CVH [2002] NSWSC 493 revised - 29/10/2009 FILE NUMBER(S) : SC 70034/00; 70012/01 HEARING DATE(S) : 30/01/02 JUDGMENT DATE : 30 January 2002 Regina PARTIES : MTN CVH JUDGMENT OF : O'Keefe J at 1 Mr G K Tabuteau - Crown COUNSEL : Mr P Bodor QC - Accused (MTN) Mr F Santisi - Accused (CVH) DPP (NSW) SOLICITORS : Michael Croke & Co - Accused MTN Nicopoulos & Associates - Accused CVH CATCHWORDS : Criminal law - Practice and Procedure - Audiovisual link sought - Voir dire hearing - Inherent jurisdiction - Statutory jurisdiction - Transparency - Dealing with matters in open court the norm - Power to order hearing in closed court - Factors relevant to exercise of power - contrast between voir dire hearing and trial of matter. LEGISLATION CITED : Evidence (Audio and Audiovisual Links) Act 1998 Supreme Court Act 1970, ss 22, 23, 80 DECISION : Cross-examination on voir dire to be conducted in a closed court. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION O'Keefe J 30 January 2002 70032/00; 70012/01 Regina v MTN; Regina v CVH On application by the Crown for witness JD to give evidence via audio-video link. 1 HIS HONOUR: In this matter application has been made on behalf of the Crown to take the evidence of a particular witness by audio-video link pursuant to the provisions of the Evidence (Audio and Audiovisual Links) Act 1998. 2 Evidence has been tendered and argument has taken place as to whether or not the Crown has established a threshold case for the exercise of the powers conferred by that Act. Having heard such argument I have determined that such a threshold case has been made. 3 Counsel for both accused wish, before a final decision is made in respect of the application, to cross-examine the witness whose evidence is sought to be taken by audiovisual link. Since the ground on which that witness seeks to have his evidence so taken is his fear and apprehension arising out of the fact that there is a gang known as Sing Wa (or Wah or War, it being variously spelt in the documents that are before the Court), the Crown has made application to have the cross-examination of the proposed witness on the voir dire taken in a closed court. 4 A basic principle of the common law is that of transparency in relation to dealing with the rights and liabilities of individuals. Courts should ordinarily conduct their business in public. That has many advantages. It is also a practice which is of very longstanding in the common law. To depart from such a situation requires good reason and adequate legal support. 5 The Supreme Court Act 1970 provides that the Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales (s 23). This of itself would in my opinion be an adequate ground to order that certain matters be dealt with in a closed court should the circumstances so dictate. 6 However, there is in addition, to that provision a more specific provision in the Supreme Court Act namely s 80. That section provides that subject to any Act the business of the Court may be conducted in the absence of the public in a number of nominated circumstances, one of which is where the presence of the public will defeat the ends of justice; a second is where the proceedings are not before a jury and are formal or non-contentious. That last mentioned circumstance seems to me not to be appropriate to the present case because without doubt the matter is contentious. A third is on the hearing of an interlocutory application, but that is subject to the proviso that it does not apply while a witness is giving oral evidence. 7 This means that the Court is thrown back to s 80(b) pursuant to which the Court may exercise its discretion to conduct the matter in the absence of the public where the presence of the public will defeat the ends of justice. 8 In the present case I am mindful of the fact that the application presently before the Court is a matter on the voir dire. No rights will be finally determined by any decision made in respect of the present application. No liabilities will be imposed. The situation is, therefore, quite different from the situation that pertains in relation to the trial of an issue be it a criminal issue or a civil issue. 9 For those reasons I am of the opinion that in a voir dire application such as the present, the disinclination of the common law to deal with matters other than in the presence of the public is not as strong as it is in the case of dealing with the rights and liabilities of individuals either under the civil or criminal law. 10 In the present case concern has been expressed by the witness as to his being possibly identified by other than the accused persons. The fact that this case is, on the evidence before me, one which involves a gang, gives to the case an atmosphere which would not pervade an ordinary case where no such allegation was made or involved. 11 In those circumstances I am of the opinion that the powers conferred both by s 23 and s 80 of the Supreme Court Act are appropriate statutory sources of power to make the order sought by the Crown. 12 Furthermore a superior court of record, as the Supreme Court is, and has always been (s 22 Supreme Court Act 1970), has an inherent jurisdiction to determine its procedure in such a way as to ensure that the interests of justice are best achieved. 13 In my opinion both under the statute and by virtue of the inherent jurisdiction there is a discretion conferred on the Court to order the closing of the Court. The circumstances in this case justify that particularly, as I have said, because the matter is a voir dire matter rather than a trial and, therefore, I order that the cross-examination of the witness take place in a closed court. ********** Last Modified: 10/30/2009 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.