R v Cahill (No. 1)

[2018] NSWSC 2024

Supreme Court

New South Wales

Medium Neutral Citation:	R v Cahill (No. 1) [2018] NSWSC 2024
Hearing dates:	9 October 2018
Date of orders:	09 October 2018
Decision date:	09 October 2018
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	Orders made permitting specified witnesses to give evidence at trial of Accused by audio-visual link from the Republic of Ireland
Catchwords:	CRIMINAL LAW - murder trial - application for witnesses resident in the Republic of Ireland to give evidence by audio-visual link - application granted
Legislation Cited:	Evidence Act 1995 Evidence (Audio and Audio Visual Links) Act 1998
Cases Cited:	---
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) Cathrina Ann Cahill (Accused)
Representation:	Counsel: Ms N Williams (Crown) Mr J Trevallion (Accused)   Solicitors: Director of Public Prosecutions (Crown) Sarkis & Co (Accused)
File Number(s):	2017/52106
Publication restriction:	On 23 October 2018, the Accused pleaded guilty to an indictment charging manslaughter which the Crown proceeded with in place of the charge of murder. On 12 December 2018, the Offender was sentenced for manslaughter: R v Cahill (No. 4) [2018] NSWSC 1896.

Judgment

1. JOHNSON J: On 22 October 2018, the trial of the Accused, Cathrina Ann Cahill, will commence upon a charge of murder. The Crown alleges that the Accused, between 17 and 18 February 2017 at Padstow in the State of New South Wales did murder David Walsh.

2. Both the Accused and Mr Walsh are Irish by origin. It is not necessary for the purpose of this judgment to recite in any detail the nature of the allegations brought by the Crown. It is sufficient to note that at the trial of the Accused a significant number of witnesses will be called who are citizens of the Republic of Ireland. A number of these persons were in Australia in a period up to and including February 2017, and are thus witnesses to be called in the trial of the Accused. A number of these persons have now returned to Ireland, where they are at present.

3. The Crown makes application that seven named persons give evidence in the Crown case from Ireland by means of audio visual link. These persons are Jonah Summers, Melissa Sinnott, Grace Keegan, Amy O'Shaughnessy, Orla McCabe, Joe Doran and Martin Doyle. A number of these persons are very important witnesses in the trial.

4. The Evidence (Audio and Audio Visual Links) Act 1998 permits evidence to be given in a criminal trial in New South Wales by means of audio visual link. In the circumstances of this trial it appears that ss.5A and 5B of that Act have application. Section 5B(2) provides:

“The court must not make such a direction if:

(a)    the necessary facilities are unavailable or cannot reasonably be made available, or

(b)    the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or

(c)    the court is satisfied that the direction would be unfair to any party to the proceeding, or

(d)    the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.”

5. Counsel for the Accused has not advanced a submission against the application made by the Crown.

6. It is the case that these persons cannot be compelled to return to Australia to give evidence in a criminal trial. If these persons decline to give evidence (including declining to give evidence by audio visual link) then it would not be possible in law for them to give oral evidence in this trial.

7. If any or all of these persons took that stance, there may be a consequential argument as to whether, because of unavailability, the statement or statements of these persons could be tendered in a criminal trial pursuant to provisions of the Evidence Act 1995. That process itself is not without its complications and is, to say the least, not desirable when there is an opportunity to secure the oral evidence of the witnesses in the trial.

8. I note that the Crown has placed before the Court an affidavit of the Crown's instructing solicitor, Ms Shelley Charles, sworn 28 September 2018.

9. Working through the statutory factors under s.5B(2) of the Act, I note with respect to s.5B(2)(a), that the evidence demonstrates that the necessary facilities for these persons to give evidence in Dublin are available and can be utilised for the purpose of each person giving evidence.

10. With respect to s.5B(2)(b), it could be said that the evidence of these persons can more conveniently be given in the court room in which the trial will proceed. However, the fact is that the evidence will not be given at all by these witnesses unless it is given by audio visual link. The opportunity for the criminal justice system to function with oral evidence from these witnesses in this murder trial may only proceed by use of audio visual link, and thus there is no prohibiting factor under subparagraph (b).

11. With respect to s.5B(2)(c), it has not been submitted by counsel for the Accused that it would be unfair to the Accused for this evidence to be given by audio visual link.

12. With respect to s.5B(2)(d), the evidence before the Court from Ms Charles makes clear that each of these persons is willing to give evidence by audio visual link at the trial.

13. Accordingly, I am satisfied that an order should be made that each of these persons give evidence by audio visual link in the trial at a time and date to be fixed, with the time and date to be identified by reference to the proposed trial programme.

14. I note that counsel for the Accused has foreshadowed that the defence may make an application for certain persons to give evidence by audio visual link. Two persons who have been nominated in that respect, Ms O'Brien and Mr Killeen, will be affected by a ruling which I have yet to make concerning a defence application for evidence to be admitted for tendency purposes.

15. Counsel for the Accused has also indicated that there may be other persons called to give evidence in the defence case, who (if they are called) will be asked to give evidence by audio visual link.

16. I mention these features because there may be a further application for persons to give evidence by audio visual link in the trial. I will consider such an application if and when it is made.

17. If such an application is made, it may be expected that the facilities and arrangements that will be put in place in the city of Dublin for the purpose of Crown witnesses giving evidence by audio visual link, at least on the face of it, may be utilised for those other persons as well. I say no more about that at the moment until an application is in fact made.

18. Accordingly, I make Orders 1, 2 and 3 in accordance with the Short Minutes of Order which I have signed and dated today. The making of that order will open the pathway for these seven persons to give evidence by audio visual link, but the details as to the date when each person will give evidence will be identified at a later time.

19. I will have my associate seal that order and make copies of it which we will furnish to the parties, leaving the original on the file.

20. If there are consequential issues that the Court needs to consider concerning use of the audio visual link, the parties have liberty to approach my associate for that purpose.

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Decision last updated: 22 February 2019