R v Cunningham; R v Moarefi (No 4)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cunningham; R v Moarefi (No 4)
Citation:	[2021] ACTSC 86
Hearing Dates:	17, 23 March 2021; 1 April 2021
Decision Date:	1 April 2021
Before:	Burns J
Decision:	See [10]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-Trial Application – application for witness to give evidence via audiovisual link – where witness is a central prosecution witness – where witness held in custody in a participating State – consideration of whether unfair to co-
accused
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 20, Part 3.2
Parties:	The Queen (Crown)
Christopher Cunningham (Accused) Benjamin James Moarefi (Accused)
Representation:	Counsel
M Dyason (Crown) T Jackson (Accused)
A Haban-Beer (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid ACT (Accused) Boxall Legal (Accused)
File Numbers:	SCC 214 of 2019; SCC 215 of 2019; SCC 270 of 2019
BURNS J:

1.       I have before me an application that a witness in the upcoming trial of each of the co-accused give evidence by way of audiovisual link from New South Wales. The witness, I am told, is central to the Crown case. This will be the second trial in relation to the co-accused, the first trial having been aborted because of unsolicited comments made by a witness, not being the witness to whom the present application refers, in the course of the first trial.
2.       Significantly, the witness who is the subject of the present application did not answer his subpoena to give evidence during the course of the first trial. Subsequently, the witness has been arrested and charged with offences in New South Wales. I understand that he is currently being held on remand without bail in that state.
3.       It is not clear at the present time for what period of time the witness will remain in custody in New South Wales. The Crown has made arrangements for the witness to give evidence by way of audiovisual link from the correctional facility in which he is currently being held in New South Wales.
4. The application before me is opposed by each of the co-accused. The application is subject to s 20 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Evidence (Miscellaneous Provisions) Act) and, in effect, the Court may only make a direction that evidence be taken by way of audiovisual link if the Court is satisfied firstly, that the necessary facilities are available or can reasonably be made available; secondly, that the evidence or submission can more conveniently be given or made from the participating State; and thirdly, that the making of the direction is not unfair to a party opposing the making of the direction.
5. I note at the outset that there does not appear to be any dispute that New South Wales is a participating State for the purposes of Part 3.2 of the Evidence (Miscellaneous Provisions) Act.
6.       I am satisfied that the necessary facilities are available or can reasonably be made available at the correctional facility where the witness is currently being held. Certainly, the evidence can more conveniently be given from New South Wales because the witness is not in a position to be able to return to the ACT to give evidence during the trial. As I have already said, it is not clear when he will be released from custody in New South Wales to return to this Territory to give evidence.
7.       The question is whether the making of any direction that the witness give his evidence by way of audiovisual link is unfair to either of the co-accused. In that regard the co-accused point to the fact that he is a central witness in the Crown case and that his credibility will be very significantly in issue. The same may be said with respect to many witnesses who give evidence by way of Closed-Circuit Television or audiovisual link.
8.       In particular, it is now the law in this Territory that ordinarily complainants in sexual assault matters give evidence by way of Closed-Circuit Television. It has not been my observation after many years of the operation of those laws that counsel cross- examining on behalf of an accused person are significantly disadvantaged.
9.       At the present time I am satisfied that the making of a direction that the witness give evidence by way of audiovisual link is not unfair to either of the co-accused. Depending upon what happens during the course of the trial, that may change.

Order

10. At the present time I direct that the evidence of the witness be given by way of audiovisual link. I will reassess that decision during the course of the trial if there is any application for me to do so.
I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.
Associate:
Date:

In the Supreme Court of the Australian Capital Territory, Justice Burns was presented with an application to allow a central prosecution witness to give evidence via audiovisual link from a correctional facility in New South Wales, where the witness was currently held in custody. The case involved co-accused, Christopher Cunningham and Benjamin James Moarefi, who opposed the application, arguing it was unfair due to the witness's crucial role in the Crown's case. The application was governed by section 20 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), which required the Court to be satisfied that the facilities were available, the evidence could more conveniently be given from the participating state, and that the direction was not unfair to the opposing party. Justice Burns found no dispute that New South Wales was a participating state, and the necessary facilities were available. Given the witness's current custody in New South Wales, the evidence could more conveniently be given from there. While the witness's centrality to the Crown's case was noted, Justice Burns observed that complainants in sexual assault matters usually give evidence via Closed-Circuit Television, and cross-examination had not been significantly disadvantaged in such cases. At the time of the decision, Justice Burns was satisfied that the direction for audiovisual link evidence was not unfair to the co-accused.

Justice Burns reasoned that while the witness's credibility was a critical aspect, the law in the ACT ordinarily allowed complainants in sexual assault cases to give evidence via Closed-Circuit Television, and cross-examination had not been hindered by this method. Given the current circumstances, with the witness in custody in New South Wales, Justice Burns was satisfied that the application met the criteria under section 20 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). He acknowledged that the situation might change during the trial, and he would reassess the decision if any application was made during the trial. The Court directed that the evidence of the witness be given by way of audiovisual link, with the understanding that this decision could be reassessed as the trial progressed.

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