R v Brennan & Leach

[2010] QDC 329

DISTRICT COURT
CRIMINAL JURISDICTION

JUDGE EVERSON

THE QUEEN
v.
SERGIE BRENNAN and TEGAN SIMONE LEACH
CAIRNS

..DATE 27/08/2010

JUDGMENT
CATCHWORDS: EVIDENCE – receipt via audi visual link –
releavant considerations-Evidence Act 1977 s 39R - Criminal
Practice Rules 1999 r 53
HIS HONOUR: This is an application pursuant to section 39R of

the Evidence Act 1997 and rule 53 of the Criminal Practice
Rules 1999 that the evidence of Professor Nicholas Fisk in the
trial of this matter be received by audio visual link from

Brisbane. This application is not opposed.

Section 39R of the Evidence Act is in the following terms:-

"(1) Subject to any rules of the court, the court may, on
the application of a party to the proceeding before

the court, direct that a person appear before, or 20
give evidence or make a submission to, the court by
audio visual link or audio link from a location
inside or outside Queensland, including a location
outside Australia.
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(2) The court may, at any time, vary or revoke a
direction made under this section on its own
initiative or on the application of a party to the
proceeding."

Rule 53 of the Criminal Practice Rules simply states: "The Court may decide to receive evidence or submissions by telephone, video link or another form of communication in a proceeding."

Professor Fisk is an expert in the fields of obstetrics and maternal-foetal medicine. The prosecution seeks to call him to testify as to the nature of the drugs located at the defendants’ residence, the process by which they are

JUDGMENT

understood to cause a termination of a pregnancy and the risks

that are associated with their use.

The basis for the application is that requiring Professor Fisk

to travel from Brisbane to Cairns in the week set for the	10
trial will cause him considerable personal and professional inconvenience. He is due to chair an international medical conference in Brisbane that week.
The Court has a broad discretion when determining an	20
application of this type. This is confirmed by the recent
Court of Appeal decision in R v. O'Neill [2009] QCA 210 at
[20]. Relevant considerations essentially relate to the
interests of justice and whether it is likely that the
defendants will suffer any prejudice if evidence is not given	30
in the physical presence of the jury. Obviously, if questions
of credit arise such that the demeanour of the witness is
likely to be a significant feature for the jury in accepting or rejecting the evidence, the Court should be cautious when considering such an application. Other relevant	40
considerations include the extent of any documentary material the witness needs to consider in giving their evidence.
The proposed evidence of Professor Fisk is of a formal nature.
He is giving evidence as an expert and I understand that his	50
credit is not in issue. I have also been informed that it is
not envisaged that he will be shown any documentary material
in the course of his evidence.

3 JUDGMENT 60

In the circumstances I am of the view that it is in the
interests of justice to allow the application. I therefore order that Professor Fisk give his evidence by audio visual link from a location in Brisbane at the trial of this matter.

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4 JUDGMENT 60

In the case of R v Brennan & Leach, the defendants sought to have the evidence of Professor Nicholas Fisk, an expert in obstetrics and maternal-foetal medicine, received via audio visual link from Brisbane. The prosecution was not opposed to this application. The matter was heard in the District Court of Queensland before Judge Everson. The primary legal issue before the Court was whether the expert evidence of Professor Fisk could be received via audio visual link from Brisbane, considering the inconvenience it would cause him to travel to Cairns during the week set for the trial.

The Court considered the broad discretion it had under section 39R of the Evidence Act 1997 and rule 53 of the Criminal Practice Rules 1999 when deciding on applications of this type. The Court was guided by the decision in R v. O'Neill, which emphasised the relevance of the interests of justice and whether the defendants would suffer any prejudice if the evidence was not given in the physical presence of the jury. The Court noted that Professor Fisk's credit was not in issue and it was not expected that he would need to consider any documentary material during his evidence. Therefore, the Court found that it was in the interests of justice to allow the application for Professor Fisk to give his evidence by audio visual link from Brisbane.

In summary, the Court granted the application for Professor Fisk to give his expert evidence via audio visual link from Brisbane. The decision was based on the formal nature of the evidence, the absence of any issues regarding Professor Fisk's credit, and the lack of documentary material to consider. The Court concluded that this arrangement was in the interests of justice and would not prejudice the defendants.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

the court, direct that a person appear before, or	20
give evidence or make a submission to, the court by audio visual link or audio link from a location inside or outside Queensland, including a location outside Australia.
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