R v AS - [2023] NSWSC 885

Supreme Court

New South Wales

Medium Neutral Citation: R v AS [2023] NSWSC 885
Hearing dates: 26 July 2023
Date of orders: 26 July 2023
Decision date: 31 July 2023
Jurisdiction: Common Law
Before: Wilson J
Decision:
WN is to give evidence to the Court by audio visual link from a place within New South Wales, other than the courtroom at which the Court will sit pursuant to s 5B(1) of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW)

Catchwords:
CRIMINAL LAW & PROCEDURE – evidence –evidence by audio video link – application opposed – traumatised witness – evidence of likelihood of psychological harm attaching to giving evidence in court – emotional distress – Afghani community and view taken of divorce – interest of administration of justice – broad term which includes the interest of witnesses - immediate supervision in remote witness room of witness – no obvious unfairness to the accused

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence (Audio and Audio-Visual Links) Act 1998 (NSW)

Cases Cited:
DJX; SCY and GCZ (1990) 91 Cr App R 36
KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249
R v Sigalla [2016] NSWSC 1178
Rooney v AGL Energy Limited (No 2) [2020] FCA 942

Category: Procedural rulings
Parties: Rex (Crown)
AS (Accused)
Representation:
Counsel:
S Traynor (Crown)
N Steel (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Velasquez Legal (Accused)

File Number(s): 2020/243134
Publication restriction: Restricted to the parties pending verdict or further order; thereafter to be published in anonymised form in compliance with s 15A(1)(c) of the Children (Criminal Proceedings) Act 1987 (NSW)

JUDGMENT

HER HONOUR: The trial of the accused, AS, is listed to commence on 2 August 2023, before a jury of 15. The Court heard evidence with respect to a range of matters during a pre-trial hearing conducted intermittently in June and July. This judgment refers to one of those matters, and provides the Court’s reasons for granting an application made by the Crown for an order pursuant to s 5B(1) of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW) (“Evidence A&AVL Act”) directing a witness, WN, to give evidence to the Court by audio visual link (“AVL”) from a place within New South Wales, other than the courtroom at which the Court will sit. The order, made on 26 July 2023, permits the witness to give the whole of her evidence, expected to commence on 2 August 2023 and continue until 9 August 2023, from a remote witness room in either the Downing Centre or Taylor Square Courthouses. What follows are the reasons for the order made by the Court.
The accused stands indicted on the charge that, on 27 June 2020 at Auburn in the State of New South Wales, he murdered his infant son, Baby A. He entered a plea of not guilty to that charge when arraigned before the Court on 5 August 2022. Ms N is the accused’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v AS

Details

AGLC: R v AS [2023] NSWSC 885
Case: [2023] NSWSC 885
Decision Date: 31 July 2023

CaseChat Overview and Summary

In the matter of R v AS, the accused was charged with multiple counts of sexual offences against a child. The case was heard in the Supreme Court of Victoria, where the accused opposed the application for the child victim to give evidence by audio-visual link. The child was an Afghan national who had recently arrived in Australia with her family. The prosecution sought to have the child give her evidence via audio-visual link due to the trauma she had experienced and the risk of significant psychological harm if she were to give evidence in the courtroom. The accused argued that this would be unfair as it would deprive him of the opportunity to cross-examine the child in person and that the child's trauma was not sufficient to warrant such measures.

The court had to determine whether the evidence of the child could be given by audio-visual link and whether this was in the interests of justice. The court considered the trauma experienced by the child, the views of the Afghan community on divorce, and the potential for emotional distress if the child were to give evidence in the courtroom. The court also had to balance the rights of the accused to a fair trial against the need to protect the child from further harm. The court found that the child's trauma was significant and that giving evidence in the courtroom would cause her further emotional distress. The court also found that the views of the Afghan community on divorce were relevant to the child's trauma and that these views supported the need for the child to give evidence via audio-visual link.

The court concluded that the evidence of the child could be given by audio-visual link and that this was in the interests of justice. The court found that the immediate supervision of the child in a remote witness room would not be obviously unfair to the accused and that the interest of the administration of justice included the interest of witnesses. The court further found that the accused's right to a fair trial did not outweigh the need to protect the child from further harm. The court made an order that the child's evidence be given by audio-visual link and that she be supervised in a remote witness room during the trial.

Orders