Introduction

As other articles in this edition of Bar News have demonstrated, the advent and roll-out of technology within courts and tribunals has principally operated as an administrative feature of legal proceedings rather than the subject of such proceedings. But, with the COVID-19 pandemic behind us (or, at least, its apparent political and social dimensions ostensibly in the rear-view mirror), the legal system appears to have reverted to characterising audiovisual link technology (‘AVL)’ as a discretion rather than a necessity. This article canvasses some recent decisions in which AVL has been a substantial issue in proceedings, and not just a logistical afterthought.

1. Palmer v McGowan (No 2) (2022) 398 ALR 524 (Lee J)

The factual background to Palmer v McGowan (No 2) (2022) 398 ALR 524 (‘Palmer v McGowan (No 2)’) was concisely put by Lee J as involving:¹

… a defamation case whereby a high profile businessman and one time (and aspiring) politician is suing a head of government, and the head of government, in response, is suing the businessman. Each proposes to give evidence.

At various points, each party sought to give their evidence by AVL^.2 Though orders were ultimately made to accommodate the schedules of the parties, such that AVL orders were not granted nor required, the court exercised the opportunity to provide guidance on how an application pursuant to s 47 of the Federal Court of Australia Act 1976 (Cth) to give evidence by AVL ought to be determined.

Unsurprisingly, the court observed that a decision to allow or decline the use of AVL to permit a witness to give evidence ‘must be exercised or carried out, in a way that best promotes the overarching purpose’, being ‘the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible’.³

Further, it was said of the legal and evidentiary burdens in such applications that:⁴

(a) The party seeking the favourable exercise of the discretion bears the burden of establishing the reason for its exercise having regard to the specific facts and circumstances and the overriding consideration of ensuring that justice is done as between the parties to the proceeding.

(b) There is no presumption nor prima facie case as to the way in which the discretion is to be exercised in the absence of countervailing considerations.

Despite accepting that the use of AVL would have been ‘quicker, less expensive and more efficient’, the decision to refuse the applications ultimately turned on the adjectival ‘just’ that preceded the expression ‘resolution of disputes’.⁵ The court went on to describe the ‘critical factor’ that would have overridden its concerns about alacrity and frugality as follows:⁶

But it is worth explaining my preliminary view because it is the critical factor informing the orders I have now made. It was reached for two reasons. The first is that consistently with the view that I have formed in other cases, I will be best assisted by assessing the evidence as to hurt to feelings by closely observing the claimants giving that evidence, not only orally but also in close physical proximity. The second is the likely central importance of cross-examination to the determination of the facts-in-issue in this case.

Not only does receiving the evidence of the witnesses in person maintain fluidity between the witness, counsel and the judge, but there is much to be said about a witness coming into the usually unfamiliar confines of a courtroom, swearing an oath or taking an affirmation in a witness box to tell the truth, and proceeding to give evidence on oath or affirmation in the physical presence of counsel and the judge. There is a solemnity about the giving of evidence, and the formalities reinforce it.

2. Southernwood v Brambles Limited (No 2) [2022] FCA 973 (Murphy J)

In Southernwood v Brambles Limited (No 2) [2022] FCA 973, the respondent initially characterised its argument that two witnesses, each of whom resided overseas, should be permitted to give evidence via AVL as a contest ‘not between hearing [one witness’s] evidence in court or via video link, but between hearing evidence from him via video link or not hearing his evidence at all’.⁷

The court rejected the application, indicating that written reasons for its decision would be prepared over the weekend. But over said weekend, the court was informed that the respondent’s two witnesses would, in fact, be travelling to Australia to give evidence.⁸

The court’s reasons for decision were handed down one week later. Based on the judgment, it can be inferred that the days were spent productively and that a well advanced draft had been assembled. The following principles can be distilled from its detailed analysis of the authorities (all emphasis in original):

1. As at 2009, the trend of authorities indicated ‘the need for a persuasive case to be made out to use a video link to take evidence, particularly to impose it on an unwilling cross-examining party, rather than the reverse’^,9 due, no doubt in part, to the oft-stated perceived deficiencies allied with the cross-examination of witnesses via AVL.¹⁰

2. As at 2012, two broad and divergent approaches governed the exercise of discretion to permit evidence being given by AVL. The first approach asserted that ‘a substantial case needs to be made out to warrant the court declining to make an order for evidence to be taken by video link’; the second approach ‘require[d] good reason to be shown before leave to give evidence by video link is granted’.¹¹

3. As at 2022, judicial opinions appear to have changed significantly, with cross examination of ‘important witnesses’ by AVL being ‘viewed favourably’;¹² the view taken that ‘the perception of a witness’s facial expressions, reactions, bodily movements and gestures may be enhanced by audiovisual technology compared to evidence given in court’;¹³ the overstatement of document management in a virtual courtroom;¹⁴ and a comment to the effect that ‘well-prepared cross-examination can be as, or just about as, effective in a virtual setting’.¹⁵

4. The discretion is ultimately that of the judge presiding over the trial in a particular case: ‘different judges may have different experiences and views as to whether they may be hindered in assessing the reliability of testimony given through cross-examination via video link. It is my task to assess the reliability of [witnesses’] evidence, and to decide whether effective cross-examination of them may be hindered, not the task of other judges in other circumstances.’¹⁶

5. Relevant factors, which are not exhaustive nor prescriptive, may include:¹⁷

(a) the employment commitments of an overseas witness;

(b) whether the credibility of the witness is in issue;

(c) whether the witness’s evidence will be ‘centrally important’ to the case; and

(d) whether the use of video link may frustrate or delay the management of documents in cross-examination.

6. Ultimately, the exercise of discretion:¹⁸

(a) involves ‘a balancing exercise as to what will best serve the administration of justice, doing so consistently with maintaining justice between the parties’; and

(b) must be guided by ‘the facilitation of the just resolution of disputes according to the law and as quickly, inexpensively and efficiently as possible’.

Lastly, it bears noting the court’s observations as to the ‘inevitable’ forensic advantages to be gained, and forensic disadvantages to be incurred, from a witness giving evidence via AVL: at [50]-[51]:

In my opinion, there is almost an inevitable disadvantage for the cross examining party in such circumstances. The converse is also true because, in such circumstances, giving evidence via video link confers an advantage on the party calling the witness. It permits the witness to give evidence from the comfort of his or her own home or office, freed from the solemnity of the occasion which being in court carries with it. In my opinion, there can be a world of difference for a witness between being cross-examined over a video link and being cross-examined in the (usually) unfamiliar confines of a courtroom, in the physical presence of the judge and other parties, in close physical proximity to a cross examiner asking difficult and sometimes confrontational questions.

3. R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529 (Hamill J)

In R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529, the court was required to determine whether, pursuant to s 5B(3) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), it was in the ‘interests of the administration of justice’ for a direction to be made that would enable a witness to give evidence via AVL.

The prosecution’s application initially sought that 10 witnesses be permitted to give evidence via AVL. It was run concurrently with several other pretrial applications (including a successful application for a judge-alone trial). However, just one of the 10 AVL applications – the application in relation to ‘Witness A’ – was ultimately contentious.

The gravamen of Witness A’s evidence was that the two accused persons were part of a criminal group that had been directed to carry out the assault on the victim of an alleged murder. If Witness A’s evidence were to be accepted, the accused would likely be convicted; if it was not accepted, the accused would likely be acquitted.¹⁹ That is, Witness A’s credibility was pivotal to the outcome of the trial. This consideration also proved pivotal to the determination of the application.²⁰

In determining the motion, Hamill J reckoned with competing authorities of the New South Wales Court of Appeal, and New South Wales Court of Criminal Appeal in respect of s 5B.²¹

On the one hand, in Antov v Bokan (No 2) [2019] NSWCA 250 (‘Antov v Bokan (No 2)’) the Court of Appeal held that: at [50]:

Constraining a party to cross-examining a witness by video link will not always, but may sometimes, involve a degree of unfairness to that party, depending on all the circumstances of the case… Relevant circumstances may include the importance of the witness, whether his or her credit was in issue, the nature and extent of documents involved, whether translation of documents or oral evidence is necessary, time differences in the other forum and the quality of technology. In certain cases, depriving the cross-examiner of the ‘reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are
not lost on the witness and the cross examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party’ may also work relevant unfairness.

On the other hand, in KN v R ([2017] NSWCCA 249, the Court of Criminal Appeal held: at [66]-[67]:

The point made in relation to assessing the credibility of the witnesses must also be rejected. The use of AVL for the purposes of taking evidence is well established and there is a substantial body of authority on the exercise of the court’s discretion to permit its use for that purpose. As the cases make clear, subject to the requirements of the legislation, the decision to permit evidence to be given by AVL is a matter for the primary judge’s discretion in the circumstances of a particular case...

While it has sometimes been acknowledged that the question whether the credibility of the witness is in issue might be relevant to
the decision to use AVL…there are numerous decisions where it has been held that the demeanour of a witness could be adequately assessed by AVL.

In line with his Honour’s earlier decision in R v Al Batat & Ors (No 1) [2020] NSWSC 967, Hamill J followed the decision of the Court of Appeal in Antov v Bokan (No 2).

Relevantly, the court held that the phrase, ‘interests of the administration of justice’ as it appears in s 5B(3) ‘is an expression of extremely wide import’ and in this case, required a consideration of the matters raised by the New South Wales Police Commissioner and the prosecutor regarding, among other things, the safety and security of Witness A, and that of the public around the court complex, as well as treating Witness A in such a way as to encourage other witnesses in a similar position to cooperate with law enforcement authorities.²²

While the concerns raised by the New South Wales Police Commissioner and the prosecutor ‘are real and serious and must be given significant weight in what is a difficult decision’,²³ it was ultimately found that ‘the best assessment of Witness A’s evidence will be made if he gives evidence in the courtroom. His evidence is crucial to the decision I will be called upon to make in a few weeks’ time.’²⁴ Hamill J emphasised that, as this was a judge alone trial for a murder charge, the court would be required to determine the question of guilt which ‘strongly inclined him to the view that Witness A should give evidence in the courtroom.’²⁵

As the party seeking the order, the prosecutor bore the persuasive burden, and despite the important matters raised, the court was not satisfied that it was in the interests of the administration of justice to make the direction sought.²⁶

4. R v Early (No 4) [2023] NSWSC 505 (Yehia J)

R v Early (No 4) [2023] NSWSC 505 also required the court to wrestle with the tension between decisions of the New South Wales Court of Appeal and the New South Wales Court of Criminal Appeal in respect of an application by the Crown to have Mr Barry Sutton, the brother of the accused, give evidence via AVL.

Though not explicit, Yehia J presiding in a jury trial appeared to endorse Hamill J’s preference for the approach taken towards s 5(B)(3) set out in Antov v Bokan (No 2). Though her Honour accepted that ‘the courts have increasingly utilised AVL facilities in proceedings involving criminal allegations, particularly during the COVID-19 pandemic which resulted in courts having to respond rapidly to ensure, as far as possible, that cases continue to be heard’²⁷, it was held that ‘that does not mean, however, that cost efficiency and the desire to reduce inconvenience eclipse the fundamental right of an accused to a fair trial’.²⁸

Relevantly, her Honour held that the following considerations are capable of indicating where the ‘interests of the administration of justice’ might lie:

a) whether the witness’s evidence is crucial to the Crown case;

b) whether the witness has given inconsistent accounts;

c) the fact that cross-examination may be impeded if the witness gives evidence via AVL; and

d) the extent to which the witness’s demeanour is relevant to an assessment of his or her credibility, and whether attendance in person may give the jury a better opportunity to assess those factors.²⁹

In the light of the ultimate finding that Mr Sutton was ‘fit to travel to Sydney’, the significance of Mr Sutton’s evidence to the Crown case, the fact that Mr Sutton had given differing accounts of the relevant events to police on separate occasions, and that his evidence was ‘hotly contested’, the court found that it was not in the interests of the administration of justice for Mr Sutton to give evidence via AVL.³⁰

Conclusion

Of course, the case law considering AVL is not limited to the categories of cases discussed in this article. In November 2023, the Federal Court of Australia rejected an application by a party to not have a defamation hearing ‘livestreamed’³¹ – the subsequent broadcast of the trial attracted, at its peak, 112,445 viewers.³² In January 2024, the Supreme Court of New South Wales admonished a party who attempted to give evidence via AVL while driving a car.³³ It remains to be seen how technology might continue to intersect as a matter of substance, and not simply as a feature of the form, in litigation. What is clear, however, is that the exercise of the broad discretion whether to hear evidence by AVL will fall to be determined by the considerations outlined above, informed by the personal views and preferences of the judge as to the importance of hearing evidence in person. BN

ENDNOTES

^{1 Palmer v McGowan (No 2) (2022) 398 ALR 524 (‘Palmer v McGowan (No 2)’): at [1].
2 Ibid [2] and [3].
3 Ibid [40] (emphasis in original).
4 Ibid [40]
5 Ibid [41]. Lee J’s emphasis on the word ‘just’ calls to mind the laconic question asked of Gleeson CJ in Kalfus v Cassis [2005] HCATrans 422: ‘There is a comma after the word ‘just’, is there not?’ (in relation to the triptych expression, ‘just, quick and cheap’ as it appears in section 56 of the Civil Procedure Act 2005 (NSW)).
6 Palmer v McGowan (No 2): at [42]–[43].
7 Southernwood v Brambles Limited (No 2) [2022] FCA 973: at [2].
8 Ibid [5]–[6].
9 Ibid [29].
10 Ibid [29]–[36].
11 Ibid [28].
12 Ibid [37].
13 Ibid [37].
14 Ibid [37].
15 Ibid [37].
16 Ibid [42].
17 Ibid [43].
18 Ibid [44].
19 R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529: at [28].
20 Ibid [46]–[51].
21 The authors note the invidious position of being caught between divergent authorities arising from a Court of Appeal and a Court of Criminal Appeal and recommend the comments on the issue made by the learned authors of P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Lawbook Co): at [33.210] and the various authorities that appear in footnote 84.
22 Ibid [36].
23 Ibid [42].
24 Ibid [46].
25 Ibid [35].
26 Ibid [50].
27 R v Early (No 4) [2023] NSWSC 50: [33].
28 Ibid [35].
29 Ibid.
30 Ibid [38]–[41].
31 Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452. Didactically, the judgment commences with three paragraphs of unexpected narrative biography regarding Lord Hewatt CJ – relevantly, the coiner of the aphorism: ‘It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’.
32 Michaela Whitbourn and Harriet Alexander, ‘Judge says parts of Higgins, Lehrmann evidence ‘simply can’t be accepted’’, Sydney Morning Herald (online, 21 December 2023) <https://www.smh.com.au/nationa...nsw/online-views-of-lehrmann-case-peaked-duringhiggins-wilkinson-evidence-20231221-p5eswl.html>.
33 Wang v Yu (No 2) [2024] NSWSC 4, [42], [61].}