R v Sigalla [2016] NSWSC 1178

Supreme Court New South Wales

Medium Neutral Citation: R v Sigalla [2016] NSWSC 1178 Hearing dates: 19 August 2016 Date of orders: 19 August 2016 Decision date: 19 August 2016 Jurisdiction: Common Law Before: Adamson J Decision: (1) Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), order that Christopher Gerard Kelliher give evidence in the trial of Mr Sigalla, the accused, by way of audio-visual link from the facility maintained by The Video Conference Centre at 8th Floor, 260 Madison Ave, NY 10016. Catchwords: EVIDENCE – application for evidence to be given by audio visual link in a criminal trial – objection taken by accused – concession by counsel for accused that witness is an important witness – consideration of factors in s 5B of Evidence (Audio and Audio Visual Links) Act 1988 – application granted Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1988 (NSW), s 5B Cases Cited: R v Wilkie [2005] NSWSC 794 Category: Procedural and other rulings Parties: Regina Andrew John Sigalla Representation: Counsel: P McDonald SC (Crown) WP Brewer (Accused)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Brendan Pigott (Accused) File Number(s): 2013/1511552013/355116

Judgment – Ex tempore 1. The Crown moves by notice of motion filed on 30 May 2016 for an order under s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (NSW) (the Act) that the evidence of Christopher Kelliher be given by way of audio visual link from a facility maintained at the video conference centre at 8th floor, 260 Madison Avenue, New York. 2. In support of the application the Crown relies on affidavits sworn or affirmed by solicitors working for the Commonwealth Director of Public Prosecutions in which they depose to communications with Mr Kelliher over the last few months relating to his availability and willingness (or lack thereof) to come to Australia to give evidence as a witness for the prosecution in the trial by jury of Mr Sigalla, which is listed to commence in October 2016. 3. The Crown has also tendered material which indicates the importance of the evidence of Mr Kelliher to the Crown case. 4. It is not necessary for present purposes to outline the importance of the evidence of Mr Kelliher to the Crown case, as Mr Brewer, who appears on behalf of the accused, has conceded that he is an important witness for the prosecution. 5. Section 5B of the Act relevantly provides: Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally (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. Turning to the first matter, s 5B(2)(a), the necessary facilities are unavailable or cannot reasonably be made available, it is established by the evidence adduced by the Crown that there are facilities available in Madison Avenue at the times at which this court is sitting which could be used for audio visual link. I note that Mr Brewer does not submit to the contrary. 2. Turning now to s 5B(2)(b), the question whether the evidence can be more conveniently made in the courtroom or other place at which the court is sitting, Mr Brewer appears to accept on the basis of what Howie J said in R v Wilkie [2005] NSWSC 794 that, as Mr Kelliher is located in the United States of America, he cannot be compelled by subpoena to give evidence in these proceedings. Accordingly, although the subparagraph speaks in terms of convenience, the situation appears to be that Mr Kelliher cannot be compelled to give evidence in this jurisdiction and therefore the matter of convenience is foreclosed in the present case. 3. The third matter, s 5B(2)(c), raises the question whether a direction would be unfair to any party. I am prohibited from making a direction under s 5B if I am satisfied that it would be unfair. The relevant unfairness is unfairness to Mr Sigalla whom it is said could not, to use the vernacular expression used by Mr Brewer, "see the whites of the witness's [Mr Kelliher's] eyes". 4. Having regard to the importance of Mr Kelliher to the prosecution case, it is a significant potential disadvantage that he will not be here in the presence of the jury and Mr Sigalla to be cross-examined in the trial. However, the availability of suitable audio visual link facilities conducted by an independent organisation, which is apparently professional, would, in my view, tend to ameliorate any unfairness to Mr Sigalla. 5. The evidence of the Crown establishes that the facilities available at Madison Avenue could be utilised in such a way that, for example, if Mr Brewer wished to cross-examine Mr Kelliher by reference to documents of which he has no prior notice, measure can be taken to ensure that Mr Kelliher does not have access to such documents until Mr Brewer, or another counsel for the accused, discloses them to him. 6. Furthermore I, as the trial judge, could give an appropriate direction to the jury so that they do not draw any inference adverse to the accused arising from the circumstance that Mr Kelliher would be giving evidence by audio visual link. 7. The next matter, in s 5B(2)(d), is whether the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission. The section prohibits me from making a direction if I am satisfied that the person will not give evidence. The evidence establishes that Mr Kelliher is willing to give evidence from the facility in Madison Avenue and, accordingly, the prohibition in s 5B(2)(d) does not operate to prohibit the making of an order pursuant to s 5B. 8. Mr Brewer contends that the application ought not be granted as the Crown has not positively established that Mr Kelliher will not come to New South Wales to give the evidence. The terms of s 5B do not require the Crown to prove that the witness has refused to come to New South Wales to give evidence. However, in any event, I am satisfied, on the basis of the evidence adduced by the Crown, that that is, in effect, what he has said. 9. The evidence adduced by the Crown contains a number of practical reasons which have been communicated by Mr Kelliher to the solicitor for the DPP or the respective solicitors for the DPP. He has apparently used up his annual leave for 2016. He has to travel from time to time for work and also to see family in New Zealand, where he is a citizen. His wife has health problems and he is unwilling to leave her on her own in the United States while he travels to Sydney for a trial. Accordingly, I am satisfied that if the order sought under s 5B of the Act is not made the prosecution will have to proceed to trial without his evidence. 10. In these circumstances I am satisfied that it is appropriate to make the order under s 5B notwithstanding the objection of Mr Sigalla.