R v Briggs (No 5)

[2014] NSWSC 854

Supreme Court

New South Wales

Medium Neutral Citation:	R v Briggs (No 5) [2014] NSWSC 854
Hearing dates:	10 June 2014
Decision date:	10 June 2014
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	The forensic pathologist, Dr Vuletic, is required to give evidence in the witness box in person in this trial.
Catchwords:	CRIMINAL LAW - EVIDENCE - joint application for a government agency witness to give evidence in person - evidence likely to be contentious - logistical difficulties with use of audio visual link
Legislation Cited:	Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5BAA
Category:	Interlocutory applications
Parties:	Regina Cecil Paul Briggs
Representation:	Counsel: Mr J McLennan (Crown) Mr C Bruce SC (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2012/399846

EX TEMPORE Judgment

1. HIS HONOUR: Section 5BAA of the Evidence (Audio and Audio Visual Links) Act1998 (NSW) ("the Act") is as follows:

5BAA Taking evidence of government agency witnesses from outside courtroom or place where court is sitting-proceedings generally

(1) Subject to any applicable rules of court, a government agency witness must, unless the court otherwise directs, give evidence to the court by audio link or audio visual link from any place within New South Wales.

(2) Subsection (1) does not apply unless the necessary audio links or audio visual links are available or can reasonably be made available.

(3) The court may make a direction under subsection (1) on its own motion or on the application of a party to the proceedings.

(4) The court may make such a direction only if it is satisfied:

(a) that the evidence to be given is likely to be contentious, and

(b) that it is in the interests of the administration of justice for the government agency witness to give evidence by appearing physically before the court.

(5) In this section:

expert, in relation to any issue, means a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence.

expert's report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert's opinion and the facts, and assumptions of fact, on which the opinion is based and includes a hospital report.

government agency witness means the following:

(a) a member of staff of the Government Service or the NSW Health Service, or a person employed in or engaged by any government agency, who has provided an expert's report for use in evidence in proceedings or proposed proceedings or who is called as an expert to give opinion evidence in proceedings,

(b) a member of the NSW Police Force called to give evidence in proceedings to corroborate evidence in chief given by another member of the NSW Police Force for the prosecution,

(c) any other witness of a class prescribed by the regulations.

hospital report means a written statement concerning a patient, made by or on behalf of a hospital, that the party serving the statement intends to adduce in evidence in chief at the trial.

1. With regard to the forensic pathologist, Dr Vuletic, it seems that the default position, if I may call it that, is that she must give evidence if an audio visual link is available, without having to attend Court in person: s 5BAA(1) of the Act.

1. Nevertheless, the parties are agreed, first, with regard to s 5BAA(4)(a) of the Act, that there is evidence to be given by the forensic pathologist that is likely to be contentious; and, secondly, with regard to s 5BAA(4)(b) of the Act, each party submits that it is in the interests of the administration of justice for Dr Vuletic to give evidence by appearing physically before the Court.

1. Apart from that, it has been foreshadowed that defence counsel will seek to have the witness examine directly two objects that have been tendered in evidence; namely, a chair leg and a baseball bat. As a matter of logistics, it would be extremely difficult, if not impossible, for those items to go back and forth, as it were, from the Courthouse to a remote location, in order for any cross-examination to proceed in a sensible way.

1. One can seriously query whether, pursuant to s 5BAA(2) of the Act, in light of that logistical aspect, in truth the "necessary audio visual link" is available.

1. In all of the circumstances I make a direction, contrary to the default position in s 5BAA(1) of the Act, that the forensic pathologist, Dr Vuletic, is required to give evidence in the witness box in person in this trial.

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Decision last updated: 01 July 2014