R v Quintana (No. 4)

1. [1]

   This is the second application made by the Crown for leave pursuant to section 50(1) of the Trans-Tasman Proceedings Act 2010 (Cth) to call the evidence of Ms Nadine Tairi in the murder trial of the accused by way of audio visual link (“AVL”) from New Zealand.

2. [2]

   On 30 January 2020 I published to the parties a judgment refusing to grant such leave based on the affidavit evidence then before me: R v Quintana (No. 1) [2020] NSWSC 23.

3. [3]

   Pursuant to leave granted today, the second application dated 30 January 2020, was filed in Court.

4. [4]

   As part of this second application, the Crown sought leave to call oral evidence from Ms Tairi by AVL in New Zealand. There were two bases for seeking this leave. First, allowing such evidence would permit the court to view the adequacy of the AVL suite provided in New Zealand and the visibility of the witness and thus facilitate an understanding of what the jury would be able to see should leave be given to lead evidence this way. Second, it would allow the Court to assess the witness’s willingness to give evidence and cooperate with the court’s processes entailed in giving evidence before the jury.

5. [5]

   That application was opposed by Counsel for the accused, who submitted that first, I would have to treat with circumspection anything that the witness said and second, any professions of intended cooperation still did not get over the hurdle of the Court not being able to control the cooperation of a witness who is not subject to a compulsion to attend or to remain to give evidence as an ordinary witness physically present before a jury would be.

6. [6]

   In my view the Crown is entitled to put its best evidence forward in support of its application. The previous application did not have adequate information to allow the necessary assessment of Ms Tairi’s understanding of the court processes nor her willingness to cooperate to an acceptable level. Accordingly I granted leave for the oral evidence to be given by Ms Tairi by AVL in support of the application.

7. [7]

   Ms Tairi told the Court that she understood that she will be required to answer questions in chief and in cross examination, and that she agreed to participate fully in the process and tell the truth.

8. [8]

   She was cross-examined by counsel for the accused. She agreed that she had been refused bail and failed to comply with conditions of bail and that two weeks after Supreme Court bail was granted, she stopped living at the address she had been bailed to and just a few weeks after that, she left the State of NSW.

9. [9]

   Ms Tairi knew that she was breaching the conditions of her bail and that a warrant could be issued for her arrest. Her family bought her a passport to assist her to leave the country and fly back to New Zealand. She knew this too was in breach of her bail conditions.

10. [10]

    It was suggested to her by counsel for the accused that one of the reasons that Ms Tairi left Australia was because she did not want to go back to gaol. She answered:

11. [11]

    This is clearly however the reason she does not wish to return:

12. [12]

    And then a few questions later:

13. [13]

    And finally:

Submissions

1. [14]

   The Crown submitted that first, the evidence that has been taken should satisfy the Court of the quality of the connection being very good and second, the Court was in a position to view the witness from just above waist height and the view could be moved back if necessary to see more of the witness. There would be no difficulty in holding up documents to the screen for the Court to check what is being read. Third, and most importantly, it was submitted that the witness answered the questions put to her by counsel for the accused and was “very candid” in her responses. Fourth, the witness indicated an intention to give evidence in the proceedings willingly, including cross examination and that she understands that she is under an obligation to give truthful evidence and that there are consequences if she does not.

2. [15]

   Counsel for the accused submitted that the witness’s evidence should cause enormous concern because she is a witness who agreed that it was her own carefully considered decision that she could ignore a range of obligations previously placed on her by this Court. Her breaches of bail and leaving the State and then leaving the country clearly indicated her disregard and that rather then return to this country, she is “too good” to do so and to face the consequences of her return.

3. [16]

   Counsel for the accused submitted that this Court should maintain its concern as to whether the witness will cooperate with the court processes, particularly given the attitude demonstrated in her evidence that she would cooperate with processes only where she thinks it is in her interests to do so.

4. [17]

   The simple point remains that this is a witness who should be in this country and give evidence in the witness box so the jury can see her face-to-face and so that she clearly understands that she is subject to the authority of this Court and so that when she is asked questions, she understands that it is by the authority of this Court that she is required to answer them under the compulsion processes of this Court.

5. [18]

   There are reasonably timely means available to secure her physical presence. Although they are means that may cause some delay, the process, namely extradition, should be pursued and with vigour.

6. [19]

   Counsel for the accused also adopted the reservations that I voiced regarding the audio aspect of the AVL in that it appeared to skip at times during Ms Tairi’s evidence and that issue, combined with the witness’s heavy accent, meant that the number of words that she apparently articulated were unable to be clearly heard and could be potentially misheard. Counsel for the accused observed that it is difficult when taking evidence from overseas where there is a delay in the transmission of a voice across telephone lines and this can cause a distortion.

7. [20]

   Counsel for the accused agreed that the visual link however was of good quality.

8. [21]

   The Crown submitted in reply that the skipping of the audio “settled down”, although acknowledging the witness does have a heavy accent and submitted that this could be dealt with by asking the witness to speak slowly. The Crown also emphasised that there was an element of uncertainty in that if the witness opposed the extradition process, there was no guarantee that it would be able to be completed in a reasonable time to secure her physical presence in the jurisdiction.

9. [22]

   The Crown submitted that I should look favourably on the witness’s evidence because she did not try and minimise what she had done and that she took responsibility for leaving the jurisdiction and articulated the reasons why she did that and why she is not returning.

Decision

1. [23]

   I find the Crown’s submissions as to the anticipated level of co-operation of Ms Tairi to be unpersuasive. It is of significant concern that this witness is prepared to boldly state what processes of the court suit her to comply with as opposed to those which do not, demonstrating a childish lack of insight.

2. [24]

   Contrary to what was submitted by the Crown, I consider the witness’s evidence to have been oddly deflecting and demonstrating only the most fatuous understanding of her obligations as a witness in this trial and no appreciation at all of the seriousness of her role and her past failures to comply with court requirements.

3. [25]

   Whilst the visual link aspect was very good, the audio link was poor and skipped 10 to 12 times during Ms Tairi’s short evidence. Frankly it was only due to the expertise and professionalism of the court reporting staff that the evidence was able to be recorded. Even that professional expertise in one place in that short passage of evidence was unable to catch all of Ms Tairi’s evidence and the words “(audio dropped)” at transcript p 16, line 43 is recorded. A similar level of expertise cannot be expected of a lay jury.

4. [26]

   Whilst in an interlocutory application that is not of critical moment, one can easily see how in a vigorous cross-examination (and given the now 5 different versions of events, there is likely to be vigorous cross-examination of this witness) a word misheard or an even minimal dropping out of audio content can create either misunderstanding or loss of critical evidence that the jury needs to evaluate.

5. [27]

   Given the centrality of this witness’s evidence as set out in detail in paragraphs [15] to [30] of R v Quintana (No. 1), this is a risk if the witness is not physically present in Court which may well result in unfairness to the accused and, potentially, unfairness to the Crown.

6. [28]

   There was nothing tendered on this notice of motion or articulated in the evidence of Ms Tairi that in any way quelled the concerns I set out in my reasons for refusing the first application: R v Quintana (No. 1) at [62] to [69]. If anything, the evidence led from Ms Tairi on this application highlights my concerns and adds a previously unpredicted reason as to why the application for this witness to give evidence by AVL should be refused – that being the difficulty created by the skipping audio, combined with the witness’s very heavy New Zealand accent.

7. [29]

   Section 50(2) of the Trans-Tasman Proceedings Act 2010 (Cth) provides:

8. [30]

   It is my view that the evidence cannot “more conveniently” be given from New Zealand given the matters I have set out in this judgment and in R v Quintana (No. 1).

9. [31]

   Most importantly however, the answers given by Ms Tairi set out in paragraphs [10], [11], [12] and [13] of this judgment betray an attitude that her own personal needs and her perception of limits around what she should be required to do, take priority over her obligations to comply with any of the processes of justice in this state.

Order

1. [32]

   The further application by the Crown for Ms Tairi’s evidence at trial to be given by AVL is refused.