R v Brian Lee
[2019] NSWSC 538
•09 May 2019
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Brian Lee [2019] NSWSC 538 Hearing dates: 09 May 2019 Date of orders: 09 May 2019 Decision date: 09 May 2019 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Direct that, until further order, pursuant to s 5BA(3) of the Evidence (Audio and Audio-Visual Links) Act 1998, the Accused is not required to appear in court in person for his trial which is due to commence on 20 May 2019.
(2) Direct that, until further order, the Accused be present at his trial by audio-visual link from the place at which he is held in custody, the Hampton Unit, Metropolitan Remand and Reception Centre, Silverwater Correctional Complex.
(3) Order that his trial commence on 20 May 2019, at 10am in Court 11C Law Courts Building, Queens Square, Sydney.
(4) Liberty to apply on short notice.Catchwords: CRIMINAL PROCEDURE – pre-trial directions hearing – estimate of timing – mental illness defence – application by the defendant to appear via AVL Legislation Cited: Evidence (Audio and Audio-Visual Links) Act 1998 Cases Cited: R v Warwick (No.26) [2018] NSWSC 1029 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Director of Public Prosecutions (Crown)
Brian Lee (Respondent)Representation: Counsel:
Solicitors:
A Robertson (Crown)
N Steel (D)
Director Public Prosecutions
Sydney Criminal Defence Lawyers
File Number(s): 2018/13154 Publication restriction: Not applicable
EX TEMPORE Judgment
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The Accused, Mr Brian Lee, has been arraigned on a charge that, on 13 January 2018, he murdered Klaus Petr. The Accused has indicated that he will plead not guilty to that charge on the basis that, at the time of the alleged offence, he was mentally ill.
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The directions hearing conducted this morning has led me to conclude that the trial, which is to be conducted without a jury, will occupy a short space of time, perhaps in the order of 2 hours or so. I anticipate that at the trial the facts as to what occurred will be agreed, and that expert opinions from two well‑qualified psychiatrists will be tendered, which will not be in dispute. It is presently anticipated that only the officer-in-charge of the investigation will give evidence, but it is unlikely that he will be subjected to any cross‑examination or, if he is, it will not be controversial.
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The Accused is presently held at the Hampton Unit at the Metropolitan Remand and Reception Centre. That unit has access to reasonably efficient audio-visual link facilities (“AVL”), as does this Court. I raised with the parties the question of whether the Accused wishes to be present at his trial in person or else by AVL link. In my view, the Court has the power to make a direction that an accused appear at trial by AVL, rather than in person, pursuant to s 5BA of the Evidence (Audio and Audio-Visual Links) Act 1998. In R v Warwick (No.26) [2018] NSWSC 1029, from [14]-[30], I discussed the statutory framework, and applicable legal principles. There is no need to repeat those passages here. I proceed on the basis of the principles there set out.
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Neither party opposes an order of the Court that the Accused attend his trial via an AVL link connected to this Court. In my view, it is also in the interests of the administration of justice that this should happen. In those circumstances, I will direct that the Accused's presence at this trial be by audio-visual link.
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I note that it will be necessary for the lawyers for the Accused to explain to him the ramifications of that, and I reserve to his lawyers the right to notify the Court if, for some reason, the direction which I propose to give is inappropriate.
Orders
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I make the following orders:
Direct that, until further order, pursuant to s 5BA(3) of the Evidence (Audio and Audio-Visual Links) Act 1998, the Accused is not required to appear in court in person for his trial which is due to commence on 20 May 2019.
Direct that, until further order, the Accused be present at his trial by audio-visual link from the place at which he is held in custody, the Hampton Unit, Metropolitan Remand and Reception Centre, Silverwater Correctional Complex.
Order that his trial commence on 20 May 2019, at 10am in Court 11C Law Courts Building, Queens Square, Sydney.
Liberty to apply on short notice.
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Amendments
20 May 2019 - Formatting error - cover sheet
Decision last updated: 20 May 2019
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