Supreme Court New South Wales Medium Neutral Citation: R v Dillon [2019] NSWSC 1533 Hearing dates: 30 September; 1, 2, 8, 9, 10 October 2019 Date of orders: 10 October 2019 Decision date: 10 October 2019 Jurisdiction: Common Law Before: Campbell J Decision: Direct that Abdul Abu-Mahmoud may give evidence via AVL Catchwords: CRIMINAL PROCEDURE – Evidence taken by Audio Visual Link – importance of witness – question of unfairness – balancing administration of justice Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1988 (NSW), s 5b Cases Cited: BUSB v The Queen (2011) 80 NSWLR; [2011] NSWCCA 39 The Queen v NGO (2003) 57 NSWLR 55 The Queen v Wilkie [2005] NSWSC 794 Category: Procedural and other rulings Parties: Regina (Crown) Joshua Dillon (Accused) Representation: Counsel: Neil Adams (Crown) Luke Brasch (for the accused) Solicitors: Solicitor for Public Prosecution (Crown) Rivera Legal (Accused) File Number(s): 2016/217435 Publication restriction: Non publication order until the completion of trials arising out of the death of Brayden Dillon revoked on 14 August 2020 Judgment 1. I am conducting a voir dire on the question whether the evidence of Mr Abdul Majid Abu-Mahmoud should be taken by audio visual link from a remote location, in this case a remote witness room at the John Maddison Tower, a court complex on Goulburn Street Sydney. I am sitting in court number 3 at the Darlinghurst complex in Taylor Square. To put the legal question more accurately, the question is whether under s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (NSW), I should direct that the evidence of that witness be given by audio visual link. 2. There can be no question at all that the witness is potentially a crucial witness in the Crown case. The accused, Mr Dillon, is charged with the murder of the witness's brother, and that offence is alleged to have been committed at premises then occupied by the accused at Anderson Avenue Panania. 3. The context needs to be borne in mind, that starts with a street brawl which both the deceased and the accused, at least on the evidence I have heard so far, and on the Crown case, had a hand in instigating. The brawl ended when the group of three, of which the accused was part, were heavily outnumbered by persons who joined the brawl apparently, but not clearly in support of the deceased and his companions. 4. On the evidence I have heard, and my understanding of the Crown case, the accused and his companions withdrew from the contest and separately returned to the accused's home. One of the other participants on his side of the record also resided there. That participant and the third participant showed up at the home after the accused had arrived, and had taken himself inside. 5. So far as I can determine on the evidence I have heard so far, the witness was either not a participant at all in the brawl, or was a very late arrival at the heel of the hunt. There is no direct evidence I think, and I have heard a number of lay witnesses, putting him in the frame as one of the contestants in the brawl. 6. What happened next is that after communication with the witness, the deceased and another witness, a Mr Obeid, drove to the accused's home. They knew where he lived. Mr Obeid appears perhaps to have been the driver, and I'm told that he remained either in or with the car when the deceased and the witness approached the premises. 7. There is an issue about whether they were armed with a hammer and a knife. On the Crown case they were unarmed, but in an aggressive mood apparently because they, it seems fairly clear, the only rational inference is they were seeking at least to go on with the contest, or perhaps effective retribution for the injuries inflicted on the deceased in the original contest. In any event, on the Crown case, the witness equipped himself with a rock, and when the other two participants, who will give evidence in the case, initially refused to get out of the car, the witness smashed the driver's door window of the car; no doubt as a very significant statement of his intent. Upon that occurrence the two occupants of the car alighted from it, and a Mr Rivera commenced to wrestle or grapple with the deceased. 8. On the evidence I heard on the voir dire, the other person, a minor at the time, whom I will refer to as JTR, says he attempted to put himself in a position where he would be free from harm behind another car. I'm not sure that is the Crown case, and it rather raises the question what this witness was doing if JTR was seeking to hide himself from him. 9. In any event, the allegations against the accused are that while Mr Rivera was wrestling, or grappling with the deceased, on the Crown case he already had him in a headlock, Mr Dillon emerged from the dwelling armed with a knife of some description, and came to the assistance of Mr Rivera by stabbing the deceased four times. The last stab wound was inflicted with such force that the knife was lodged in the anatomy of the deceased. He died soon afterwards on his way to hospital. 10. The case for the accused on the opening of Mr Brasch of counsel is that he acted in self-defence, probably more strongly, and more obviously perhaps in the defence of another in coming to Mr Rivera's assistance, and it's on that basis that he has pleaded not guilty. 11. It is also necessary to say that this is a case of a most concerning kind because on evidence I have read in an affidavit of a senior detective attached to the Homicide Squad, and involved with a particular strike force, the contents of which I have suppressed, or at least made the subject of a non-publication order. Mr Adam Abu-Mahmoud's death appears to have been the casus belli for a number of very serious events, including the murder of the accused's brother, entirely innocent of any involvement in any of these matters, but in apparent reprisal for the death of Mr Abu-Mahmoud. Certain members of the Abu-Mahmoud family, and others, have been charged in relation to the matter, or with having some involvement in it. There was also a drive-by shooting of a place connected with the witness JTR, and an incident at a courthouse of a very threatening kind amounting to intimidation when JTR appeared as required. This witness was alleged to have been involved in that intimidation of JTR on that occasion in December 2017. 12. It is against that background that the Crown makes this application for the direction the witness gives his evidence remotely. It's a very unusual case in as much as the substantial thrust of the argument is that it's in the interests of the administration of justice that I make that direction, not in any way for the protection of the witness, which is the more usual submission made in support of such applications, but for the safety of others. The concern is that given the behaviour of the witness at the Children's Court, given these very serious matters, apparently doing the best the police can to get to the bottom of them involving the Abu-Mahmoud family, it is for the safety of others, and perhaps including the accused, that this witness gives his evidence remotely. It's implicit in the application that he is prepared to give his evidence in that manner. 13. There are a number of factors put forward, including the consideration that I received two reports from a forensic and clinical psychologist, Hanan Dover, about treatment he has given the witness since the death of his brother. And it must be borne in mind that he was present, and no doubt a witness to the infliction of the fatal stab wounds, that he attempted to get his brother assistance of a medical kind, that he attempted to drive him to hospital, and may have been present when he died. All of those factors suggest that he was exposed to the type of trauma which may be capable of giving rise to a post-traumatic stress disorder. In any event, that is what the psychologist has diagnosed to the extent which is a matter for a psychologist. As well as occurs not uncommonly, comorbidity of a major depressive disorder. 14. I have no reason to doubt the diagnosis, however, I must say, as Mr Adams of Senior Counsel conceded for the Crown, where the application may not be of obvious merit, it must be said in relation to his psychological condition that he's not sought any treatment for it in the last two years other than attending on the psychologist on 6 October for the purpose of the psychologist preparing an up-to-date report for the purpose of the case. The real relevance of that psychological condition is the extent to which it may well enhance his volatility as a witness, which in its turn can create the risk that others in court may be affected by his anger or his volatility. 15. As I have said already, I am sitting in court number 3 at Darlinghurst. It is a fine old courtroom, but the area where the witness sits is confined, it is in close proximity to the court reporters, to court staff, to the jury, and of course to counsel. All of those matters need to be taken into account. 16. Mr Brasch of counsel has submitted that it is unfair to the extent to which it detracts from the fairness of this trial if the witness is permitted to give his evidence from a remote location. He points to the important aspect of natural justice in criminal cases that an accused person is entitled to confront his accuser. And there is no doubt that the witness is an accusatory witness in the context of this trial. 17. That is an important principle, and in some cases could potentially be decisive. However, it was not held to be in the case of BUSB v The Queen (2011) 80 NSWLR; [2011] NSWCCA 39 page 170. That case, however, did involve questions of the District Court's implied powers rather than the provisions of s 5B of the Act with which I am concerned which confers an express power on courts to make the order sought. 18. Moreover, the matter has been considered in other cases involving the Act. In The Queen v Wilkie [2005] NSWSC 794, Howie J said at paragraph 69: The simple fact if the witnesses is not before the Court and, therefore, cannot be confronted by the accused is not itself a sufficient reason to refuse to make a direction under the section in a criminal trial. Nor is it a simple fact that the video link procedure is deficient to viva voce evidence from the witness in person a sufficient basis for not using the procedure. To reject the application on these grounds would be to act contrary to the intention of the legislature. S 5A provides that the provisions apply in criminal proceedings and that fact has been specifically, although parenthetically, stated presumably in case any doubt arose about that fact. In The Queen v NG (2003) 57 NSWLR 55, the Court of Criminal Appeal at paragraph 180 in dealing with the question of unfairness referred to under s 5B(2)(c) of the Act: Making a direction that the evidence of an accusing witness be received by audio visual link external to the courtroom must, by its very nature, involve unfairness to the 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 person could not have a fair trial. I understand that last sentence to mean unfair in some fundamental way that would lead an appellate court to allow an appeal under s 61 of the Criminal Appeal Act 1912. 1. In any event, Mr Brasch relies upon that element of unfairness, and relies upon the aspect of natural justice which entitles Mr Dillon to confront the witness while he is giving evidence. 2. He points out what an important witness the witness is likely to be. He also puts to me that if not in these terms, but as I understood it, if the witness proves himself to be intemperate, well so be it, if the witness himself is confrontational and prone to outbursts, well so be it. Those are matters which the jury would be entitled to see and take into account in assessing his credibility, which is very much an issue in this trial. 3. I accept that at a remote location, away from the pressure of the courtroom, it is less likely that a person will overreact, or overreact in a volatile manner when giving evidence. The real question here, I think, is whether in accordance with the provisions of s 5B(3) of the Act the Crown has persuaded me that it is in the interests of the administration of justice for me to make the direction that the witness give the evidence remotely. 4. The burden of proof in this matter is governed by the provisions of s 142 of the Evidence Act. It is sufficient if the Crown persuade me on the balance of probabilities rather than beyond reasonable doubt. 5. I have not found the matter an easy one to decide. We have reached a point in the administration of criminal justice in the 21st century where evidence by audio-visual link in criminal trials is relatively common place. There are few trials, in my experience anyway, which come before the courts these days where one or more witness does not give evidence by AVL. It's happened already by consent in this trial, and will happen again, and of course Government experts are entitled to give evidence by audio-visual link, unless there is a good reason to refuse that. Of course under the Criminal Procedure Act, peoples' complainants in sexual assault cases of vulnerable people have a right to give evidence remotely and, indeed, by pre-recorded procedures. 6. The difficulty with the case is the unusualness of the application. Special arrangements were made in the trial for security because of the history, to which I have referred; although, so far, the trial has proceeded entirely without incident and, indeed, so far the trial has proceeded with very little public interest, a matter that may be accounted for by the consideration that we have been dealing with the first phase of the proceedings consisting of the evidence of lay witnesses in relation to the brawl to which I referred. 7. We are approaching a time when the gravamen of the trial will be supported by evidence, including the evidence of the witness and other family members of the deceased. 8. It does seem to me that as much as there is significant force in Mr Brasch's arguments, that the interests of the administration of justice require that I make the directions that are sought. When I referred to the administration of justice, I'm not just referring to its application in this important case, but to the ongoing process of administering criminal justice in this State. 9. It seems to me that it behoves the Court in appropriate cases to take steps to ensure the security, not just of the accused, but of other participants in the trial process, including counsel, instructing solicitors, court staff and court reporters, and of course members of the public who may wish to enter the courtroom and in exercise of their common right to witness the proceedings, and it seems to me, for the reasons I have given, that this direction enhances the security of the Court in the way I have sought to explain. 10. I will say this: Naturally, if there is any disadvantage to the jury in terms of assessing the evidence of the witness, as I remarked during argument, and if Mr Brasch requests it, I will give the jury a direction about the possible significance of demeanour in assessing a witness' credibility and reliability, and will add that to the extent to which they feel at a disadvantage in assessing this witness' credibility, that is a factor which they should consider counting in favour of the accused in terms of determining whether they have a doubt about his version of events; that is to say, the witness' version of events. However, I will not think that an appropriate direction to give when the witness gives his evidence in the circumstances of the case but, rather, one to be given in final summing-up. 11. For those reasons I will make the direction. ********** Amendments 14 August 2020 - Revocation of non publication order 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: 14 August 2020