R v Walker [2025] NSWCCA 62

R v Walker [2025] NSWCCA 62 · Read the judgment on AustLII

Catchwords: Video-link evidence – Emerging view about problems

In this decision about a jury direction, the Court of Criminal Appeal (‘CCA’) has commented on the emerging view that in-person evidence has advantages over video evidence. The obiter comments are likely to be worthwhile reading for any practitioner making or opposing an application that a witness gives evidence by Audio-Visual Link (‘AVL’), as well as being specifically relevant in cases where AVL evidence, once given, was affected by the quality of the link.

The respondent (this was an interlocutory Crown appeal) was before the District Court facing a jury trial for a range of sexual offences, two counts of intimidation, and one count of break, enter and commit serious indictable offence, all in relation to the same complainant. The complainant (and other witnesses – though only the complainant is important for present purposes) gave evidence by AVL, as she was entitled to do by Criminal Procedure Act 1986 (NSW) s 294B(3), because the trial involved a prescribed sexual offence. Section 294B(7) requires that in any case where a complainant gives evidence by way of AVL, the jury must be directed that it is standard procedure for that to occur, and warn the jury not to draw any adverse inference against the accused, nor give the evidence any greater or lesser weight because AVL is used. The directions required by the statute were given. Subsequently, however, the trial judge gave the jury a direction to the effect that any difficulty the jury encountered in assessing the credibility of a witness because of the use of AVL should be resolved in favour of the accused. The Crown made an application for a discharge of the jury, asserting at trial (and on the appeal) that the trial judge’s additional direction to was inconsistent with the statutory warning. The trial judge refused the application to discharge the jury, whereupon the Crown urgently appealed.

The Court (Dhanji J; Harrison CJ at CL agreeing; McNaughton J agreeing with the outcome, but declining to express a view on the parts of this judgment which are reported in this summary) allowed the appeal insofar as error was established in the giving of the direction. It remitted the matter, essentially inviting the trial judge to reconsider whether further directions should be given, or whether the trial judge might not order a discharge after all.

In the course of providing his judgment, in comments that are strictly obiter, Dhanji J commented on the emerging views of judges and research to the effect that evidence by AVL may not be as effective as evidence given in person.

The direction that the trial judge gave in the present case was based on a CCA decision from 2005. However, the Court in delivering that judgment was not bound by s 294B(7) of the Criminal Procedure Act. Nevertheless, the direction does highlight a problem which the judge was anxious to address: how does a jury evaluate the evidence of a witness who gives evidence from outside the courtroom, and what should they be told about that (at [27]-[28])?

Technology has improved over the years, and some judges have expressed the view that the quality of modern platforms and the size of video screens actually enhances the ability to observe witnesses (at [30]-[31]). There is, however, something of a trend towards re-evaluating a confidence in the functional equivalence between in-person and AVL evidence – among them at least one judgment of a Supreme Court trial judge expressing concerns, and one Federal Court judge revising his own earlier optimism about AVL, and expressing ‘nagging disquiet’ about its impacts on his assessment of witnesses (at [33]). The concerns extend, in some cases, to ‘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 to inhibiting the cadence and chemistry between bar and bench, as well as bar and witness box that personify well-run causes (at [34]-[35], quoting other authority). The trend appears to be towards an acknowledgment that the comfort that courts have developed with the use of AVL, and the corresponding increase in frequency with which it is used, should not be confused with such evidence being the equivalent of in-person testimony (at [37]).

Additionally, whilst the research is not all one way, the dominant academic view is that, even with advances in technology, AVL does not overcome the advantages of in-person testimony, instead providing only an approximation of face-to-face interaction (at [38]). The quality of the of the technology matters – and particularly the quality of the audio. Even when there is no issue with the technology, some research suggests witnesses may behave differently when giving evidence via AVL than they would in the courtroom (at [39]-[40]). Some scholars suggest that the issues with AVL cause evidence to be less believable, which may in some circumstances favour an accused. The witness may have more difficulty engaging in the proceedings and may feel alienated, stressed, or fatigued (at [41]-[43]). Against the background of all the issues raised, the challenged in the particular context of a jury trial to which s 294B(7) applies is how to deal with both the legislative prohibition and the reality that the impact of the use of AVL may be beneficial or detrimental to a party, and that impact will, in the ordinary case, not be ascertainable (at [49]).

To the extent that these and other effects are present but not able to be specifically identified, a direction a jury alerting the jury to them in the context of a witness to which s 294B(3) applies is likely to be contrary to s 294B(7) (at [54]) and [56]). In a case where a witness is entitled to give evidence by AVL, to direct the jury that the use of that medium may have adversely affected the way that their evidence is perceived would be to convert that entitlement to give evidence by AVL into a qualified entitlement (at [57]). There seems to be no real alternative to an anodyne direction, given in the terms of the section, warning the jury against drawing any inference adverse to the accused based on the use of the mode by which the evidence was given, or, for that reason, to give the evidence greater or lesser weight (at [56]).

The judgment then provides, at [59] for a suggested direction which may be sought in appropriate cases. Insofar as that direction is sought, it will be necessary to clearly articulate the basis for it, and difficulty in assessing the evidence simply because it was given by AVL will not suffice (at [60]). The proposed direction is intended more for cases where there was distorted audio or video, or delay in the communication stream, or blurriness, rather than run-of-the-mill cases.