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  • Writer's pictureGeoff Harrison

Giving Evidence from Overseas


Published by Geoff Harrison | 12 July 2023


An application for a witness to give evidence via Audio Video Link (AVL) or telephone in the Local Court is covered by Practice Note 1 (PN1) at cl. 7.2. The application is to be made 10 days prior to the hearing and is to be heard in chambers unless a party does not consent to the order/or it is in the interest of justice to do so. The application is to made in the form as set out in Attachment D to PN1. A court has power to direct that a person give evidence or make a submission via AVL from any place within or outside New South Wales, including a place outside Australia - see s5B of the Evidence (Audio and Audio Visual Links) Act 1998 (below). The limitations are contained within s5B(2) of that Act.


Unfortunately, things are not a simple as one would think at first blush, in terms of communicating with a witness that is to give evidence in a NSW Court from overseas (as noted in Wang Chunfeng v Law Society of NSW [2022] NSWSC 986 and Dunbrae Pty Ltd v Armani Restaurant Pty Ltd [2022] NSWDC 308. Australia is a signatory to the Hague Convention of 18 March 1970 on the "Taking of Evidence abroad in Civil or Commercial Matters” (the Hague Evidence Convention) whilst this relates to Civil or Commercial matters, it does raise issues generally or principally in relation to sovereignty, international comity, consent and possible legal restrictions in the other Country.


It is the case that Australia has procedures and protocols in place for requests made by foreign Countries for persons within Australia to give evidence in that country: see s26(2) of the Mutual Assistance in Criminal Matters Act 1987 (Cth)- Requests for giving evidence in foreign countries. See flowchart below from the International Crime Cooperation Central Authority (ICCCA) in relation requests for assistance to Australia for witnesses to give evidence in a foreign country. There is also the Foreign Evidence Act 1994 (Cth) for orders relating to issuing of a letter of request to the judicial authorities of a foreign country to take the evidence/examination of the person or cause it to be taken from a person outside Australia (see s7).


For Foreign Country AVL requests the ICCCA requires 3 months notice for a Mutual Assistance Request.


Giving Evidence Overseas, Evidence

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5B TAKING EVIDENCE AND SUBMISSIONS FROM OUTSIDE COURTROOM OR PLACE WHERE COURT IS SITTING--PROCEEDINGS GENERALLY


(1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.


(2) The court must not make such a direction if--

(a) the necessary facilities are unavailable or cannot reasonably be made available, or

(b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or

(c) the court is satisfied that the direction would be unfair to any party to the proceeding, or

(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.


(2A) A court must not make a direction under this Part in relation to the giving of evidence or making of a submission by audio visual link by any accused detainee in any criminal proceeding in relation to the detainee concerning an offence alleged to have been committed by the detainee. However, this subsection does not prevent the making of such a direction in relation to an accused detainee in any other proceeding to which this Part applies.

Note : Part 1B of this Act contains provisions with respect to the appearance of accused detainees who are in custody in criminal proceedings.


(3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.


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Dunbrae Pty Ltd v Armani Restaurant Pty Ltd [2022] NSWDC 308 (3 August 2022)


District Court

New South Wales

Case Name:

Dunbrae Pty Ltd v Armani Restaurant Pty Ltd

Medium Neutral Citation:

[2022] NSWDC 308

Hearing Date(s):

28 July 2022

Date of Orders:

28 July 2022

Decision Date:

3 August 2022

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

Application for evidence to be taken by AVL from United Arab Emirates denied

Catchwords:


CIVIL PROCEDURE – audio-visual link – whether taking evidence by video link to foreign country intrudes on sovereignty of foreign country – relevance of international comity – application of Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B – application to state court of principles in Wang Chunfeng v Law Society of New South Wales [2022] NSWSC 986; Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213; [2011] FCAFC 95

Legislation Cited:

Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B


Federal Court of Australia Act 1976 (Cth), ss 47A

Cases Cited:

Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213; [2011] FCAFC 95


Wang Chunfeng v Law Society of New South Wales [2022] NSWSC 986

Category:

Procedural rulings

Parties:

Dunbrae Pty Limited, Plaintiff/Cross Defendant


Armani Restaurant Pty Ltd, Defendant/Cross Claimant

Representation:

Counsel:


Mr Kaufmann, Counsel for the Plaintiff/Cross Defendant


Mr Oakes, Counsel for the Defendant/Cross Claimant


Solicitors:


Rostron Carlyle Rojas Lawyers, Solicitors for the Plaintiff/Cross Defendant


Grove Lawyers, Solicitors for the Defendant/Cross Claimant

File Number(s):

2019/00016357

JUDGMENT EX TEMPORE


1. HIS HONOUR: This matter was listed part heard today including for oral evidence in the form of cross-examination of Mr Mustafa Krich. Mr Krich is the owner of the defendant cross-claimant restaurant - that is, practically speaking - he is the sole director of the defendant cross-claimant company.


2. The proposal was for the evidence of Mr Krich to be taken by audio visual link to Dubai within the United Arab Emirates. At the commencement of today, I raised with the parties the decision of Wang Chunfeng v Law Society of New South Wales [2022] NSWSC 986, in which Basten AJ expressed the mindfulness required of the issue of whether the taking of evidence from a foreign sovereign nation is conducted without offence to the sovereignty of that nation.


3. The facts were different in the case of Wang Chunfeng. He was a plaintiff - to that fact, there is not much difference given that Mr Krich is, as it were, for practical purposes, the defendant cross-claimant. But, significantly, Mr Wang Chunfeng was a citizen of China, to which country the link was proposed. It has been confirmed after a short adjournment that Mr Krich, in this case, is an Australian citizen.


4. No steps have been taken, other than after it was raised this morning by the Court, toward investigation of whether there is a complexity or otherwise, perhaps even an illegality in the UAE, in the obtaining of evidence in this way.


5. I have not, in these reasons, needed to the distinction between giving evidence on oath or just the evidence being taken in some other fashion with consent of the parties by audio visual link. When I say consideration of the distinction isn't available to me, this is because the primary question of whether or not the audio visual link connection offends laws between the sovereign nations of the United Arab Emirates and Australia or indeed The Hague Convention, is likely to be a complex one. Basten AJ explained that The Hague Convention has not kept up with modern communication mechanisms such as audio visual link - and, to some extent, a practice has developed for sidestepping the procedures and protocols between nations by use of modern media in that way.


6. Having observed that; there is nothing before me to indicate whether or not the United Arab Emirates is a participant in The Hague Convention. The parties have not addressed that. The Full Court decision in Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213; [2011] FCAFC 95 is now 11 years old, and the international relations through such a Convention may not be the same as they were then.


7. The Court in Joyce referred to advice received from the Department of Foreign Affairs and Trade. The Department had advised the Federal Court of Australia by email on 7 September 2010 of information received through the Australian Embassy in Abu Dhabi about the taking of evidence in Dubai. The extract of that advice at para 4 of the judgment includes that the process can take a substantial amount of time, and, “but is the only avenue available at this time”. DFAT reported, in part, that the embassy had advised that after a meeting with the Acting General Attorney of Dubai and head of the Technical Bureau at the Dubai prosecutor’s office, “All requests for mutual legal assistance, including requests for videoconferencing, must be submitted through the UAE Ministry of Foreign Affairs. Each request will be considered on a case by case basis. Any mutual legal assistance that the UAE provides must be consistent with UAE federal law on International Judicial Cooperation in Criminal Matters,..”


8. The reference to criminal procedure in that jurisdiction is of different meaning, than references to criminal or civil procedure might have here. That is because the communication from DFAT explained that for the taking of oral evidence, all civil matters in that jurisdiction are treated in the same manner as criminal matters. The advice explained that taking oral evidence in civil matters is not common in that jurisdiction.


9. The Full Federal Court, coming to its determination, of course pursuant to a Commonwealth statute, not a statute of the State of New South Wales, having found that the Commonwealth statute did provide the power for taking evidence, continued at para 23 by quoting from an advice obtained from Dubai lawyers. The effect of that advice was that the authors had not found any law of United Arab Emirates against the taking of witness evidence in Dubai for use in a foreign proceeding. That advice came with the following caveat: “However, you will appreciate that we cannot confirm, nor give you any guarantee, that the Dubai government would not object or intervene in the Australian Court taking evidence from the witnesses in Dubai for use in the Australian proceeding.”


10. I note the current legislation in New South Wales, the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B, and that in the Commonwealth, the Federal Court of Australia Act 1976 (Cth), s 47A as considered in Joyce v Sunland Waterfront (BVI) Ltd, are of similar wording and form.


11. There is no foreign sovereign nation firewall against audio visual link communication to be considered in this case, as there was in the case of Wang Chunfeng v The Law Society of New South Wales. That persons between the United Arab Emirates and Australia are free to, and do, communicate by modern media, telephone, internet and so on, is well known. In that case, Basten AJ was informed that China was a party to the Hague Evidence Convention.


12. There are several concerns in regard to the present proposal for taking of evidence by Mr Krich, which, in my view, warrant my refusal that evidence be taken in the way proposed. Firstly, no approach has been made to the United Arab Emirates in regard to the taking of the evidence and I would, if the evidence were to be taken now; be required to rule without knowing whether that nation was a member of the Hague Convention and what its present laws would provide in relation to the taking of evidence in the proposed way.


13. Next, this is a civil matter of modest quantum, which can be conducted without significant prejudice, so far as I am aware, to either party on another occasion, if the evidence of Mr Krich, orally, is to be taken. His affidavit was read without objection. It would be unfair to land the fault at the full feet solely of either party.


14. Finally, on what is available to me, I have no basis of being confidently persuaded that acting as a judge of an inferior court of a state, under state legislation, I would be able to proceed without – and availing myself of the expression used by Basten AJ, in para 26 – “possible ramifications of such an action”.


15. His Honour mentioned ramifications, including in regard to international relations. He then stated, “There are different views as to what involves an invasion of sovereignty in accordance with international law”. In the next paragraph, number 28, he confirmed (as I have just said), that unlike Joyce, the relevant law here is the law of a state or territory conferring power on a State Court.


16. For all those reasons, I cannot be assured that there are not adverse ramifications indeed for Mr Krich but also in terms of international relations were I to make the order to permit the evidence. In the exercise of my discretion, I am not prepared to do so.


ORDER

17. I make the following order:

(1) The defendant/cross claimant’s application for Mr Krich to give evidence from Dubai in the United Arab Emirates by Audio Visual Link is denied.

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