R v BNS

Case [2016] ACTSC 51


HUMAN RIGHTS ACT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v BNS

Citation:

[2016] ACTSC 51

Hearing Date:

23 March 2016

DecisionDate:

24 March 2016

Before:

Refshauge J

Decision:

SN give evidence by audio visual link from a room in the ACT which is outside the court room in which the trial is being heard.

Catchwords:

CRIMINAL LAW – Jurisdiction, practice and procedure – trial

EVIDENCE – Evidence of complaint – relationship evidence – history of family violence by accused against witness – accused has conviction for intimidating witness – evidence via audio visual link from a remote location – pre conditions in s 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – convenience of giving evidence via audio visual link – fairness to accused – no objection by defendant

Legislation Cited:

Crimes Act 1900 (ACT), s 62(6)

Evidence Act 2011 (ACT), s 66
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 30, 32, 32(2), 32(2)(c), Pt 4,
Human Rights Act 2004 (ACT), s 22

Court Procedures Rules 2006 (ACT), r 6703

Cases Cited:

Australian Competition and Consumer Commission v StoresOnline International Inc [2009] FCA 717

Brodie v Streeter (2003) 180 FLR 176
Cessnock City Council v Bimbadgen Estate Pty Ltd [2011] NSWLEC 136
Dorajay Pty Ltd v Aristocrat Leisure Ltd [2007] FCA 1502
HML v The Queen (2008) 235 CLR 334
Holzman v New Horizons Learning Centre (Canberra) Pty Ltd (2004) 180 FLR 246
Picos v Healthengine Pty Ltd [2014] FCCA 640
R v Diane [2010] 2 Cr App R 1
R v Hampson [2014] 1 Cr App R 4 28
R v Mr C (1993) 67 A Crim R 562
R v Ngo (2003) 57 NSWLR 55
R v Savvas (1989) 43 A Crim R 331
R v TI (No 2) (2015) 11 ACTLR 58
R v TK (No 2) [2015] ACTSC 87
R v Wilkie (2005) 64 NSWLR 125
Stuke v ROST Capital Group Pty Ltd (2012) 207 FCR 86

Parties:

The Queen (Crown)

BNS (Defendant)

Representation:

Counsel

Ms J Campbell (Crown)

Mr J Sabharwal (Defendant)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Defendant)

File Number:

SCC 53 of 2015

REFSHAUGE J:

  1. The accused, BNS, has pleaded not guilty of two counts of incest and five counts of committing an act of indecency on TN. At the time, BNS was in a relationship with SN, the mother of TN. TN was, within the meaning of s 62(6) of the Crimes Act 1900 (ACT), said to be the step child of BNS.

  1. SN has been called to give evidence at the trial and is expected to give evidence of complaint made by TN as to the acts charged, admissible under s 66 of the Evidence Act 2011 (ACT). She is also expected to give what is known as relationship evidence (see HML v The Queen (2008) 235 CLR 334) setting out her and her children’s relationship with BNS as the setting or context for the alleged offending.

  1. Application has been…

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R v BNS [2016] ACTSC 51
Case
[2016] ACTSC 51
Decision Date

CaseChat Overview and Summary

The case of R v BNS involved a criminal trial where the accused, BNS, was charged with offences related to family violence. The trial was held in the ACT Supreme Court, with the court having to decide on the admissibility of evidence given by a witness, SN, via an audio-visual link from a remote location. The central issue was whether the conditions for such testimony under section 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) were met, and if the procedure was fair to the accused.

The court had to consider whether the evidence of the witness would be reliable and fair if given via an audio-visual link. It was noted that the witness had a history of family violence by the accused and the accused had a prior conviction for intimidating the witness. Despite these concerns, the court assessed that the conditions for the use of audio-visual links were satisfied, particularly in terms of the convenience for the witness and the absence of any objection from the defence. The court concluded that the evidence given by the witness from a remote location would not prejudice the fairness of the trial.

The Supreme Court ruled that the evidence of the witness could be admitted via an audio-visual link from a room in the ACT outside the courtroom where the trial was being conducted. This decision was made in light of the convenience for the witness and the absence of any objection from the defence regarding the manner of the testimony. The court also noted that the potential for prejudice to the accused was minimal given the circumstances and the prior relationship between the parties. The decision was made in accordance with the provisions of section 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

Orders

Orders of the court

SN give evidence by audio visual link from a room in the ACT which is outside the court room in which the trial is being heard.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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