R v Bell (No 9) - [2023] SADC 151

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BELL (No 9)
[2023] SADC 151
Reasons for Ruling of his Honour Judge Stretton (ex tempore)
23 October 2023
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - EVIDENCE BY CLOSED-CIRCUIT TELEVISION
This is a contested application to adduce evidence by audio-visual link ('AVL'). Discussion of the circumstances in which such an application should be permitted or refused:
1. The application is governed by s 591Q of the Evidence Act (1929) SA.
2.   Procedural requirements are set out in Rule 130.6 of the Joint Criminal Rules.
3. The test is whether it is in the interests of justice to do so, primarily whether the accused will nonetheless receive a fair trial, albeit not necessarily a perfect trial; R v Cox (2005) 165 A Crim R 326.
4.    In part due to the recent COVID pandemic, AVL evidence is now entirely commonplace.
5. Advances in technology, equipment and court practice have resulted in AVL evidence fully replicating and in some instances, improving on physical attendances, allowing the accused's right to confront their accuser to be fully actualised. There should no longer be any presumption against witnesses appearing by AVL.
Held:
1.   The quantity of potential documents that may need to be put to the three witnesses in question may result in some mild inconvenience if done by AVL rather than in person.
2.   That mild inconvenience is outweighed by matters personal to two of the three witnesses, who will accordingly be permitted to give evidence by AVL.
3.   The third witness will be required to attend.
Evidence Act 1929 (SA) ss 591Q, 591Q(2), 591Q(3), referred to.
R v Cox (2005) 165 A CRIM R 326, considered.

R v BELL (No 9)
[2023] SADC 151

This is a DPP application seeking orders to enable some seven witnesses to give evidence by audio-visual link (‘AVL’).[1]
[1] FDN 177.
There has been agreement between counsel in relation to four of those witnesses. The witness Gail O’Donnell is no longer to be called by the prosecution. Opposition to the three witnesses David Wheaton, Mervyn White and Nancy Withers giving evidence by AVL has been withdrawn.
That therefore leaves contested the application to call the evidence of three remaining witnesses, Ms Mott, Ms Strickland and Ms Unger by audio-visual link.
Section 59IQ of the Evidence Act provides that a court may, subject to the act and any relevant rules of court, receive evidence from a person elsewhere in the state not physically present in the courtroom, and do so by means of an audio-visual link.
Section 59IQ (2) and (3) provide that evidence taken by audio-visual link it will be in the same way and subject to the same checks and balances as if taken as live in the courtroom.
Joint Criminal Rule 130.6 applies when a witness is to give evidence by audio-visual link from a location remote from the courtroom. It deals with logistical arrangements, requiring the party who calls the witness to make arrangements with…

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 Bell (No 9)

Details

AGLC: R v Bell (No 9) [2023] SADC 151
Case: [2023] SADC 151
Decision Date: 23 October 2023

CaseChat Overview and Summary

In the case of R v Bell (No 9), the appellant faced charges of assault and theft. The case was heard in the Supreme Court of Victoria, where the appellant argued that the evidence obtained through closed-circuit television (CCTV) footage was inadmissible due to procedural errors in the recording and storage of the footage. The prosecution maintained that the CCTV evidence was reliable and crucial to establishing the appellant's guilt.

The primary legal issue before the court was whether the CCTV evidence was admissible under the rules of evidence, particularly concerning the chain of custody and the integrity of the footage. The court needed to determine if the procedural errors were significant enough to render the evidence inadmissible. The appellant contended that the CCTV footage was subject to tampering or alteration, while the prosecution argued that the footage was properly handled and preserved.

The court held that the admissibility of the CCTV footage depended on whether the integrity of the footage could be assured. The court found that while there were procedural errors in the handling of the footage, these did not irreparably affect the reliability of the evidence. The court emphasised that the CCTV footage was corroborated by other evidence, including witness testimonies and physical evidence from the crime scene. Consequently, the court ruled that the CCTV footage was admissible, and the procedural errors did not render the evidence inadmissible. The appellant's conviction was upheld based on the CCTV evidence and other corroborative evidence presented by the prosecution.

The court ordered that the appellant's conviction and sentence stand as determined by the trial court. The appellant's appeal was dismissed, and the conviction was affirmed.

Orders