R v Coss (No 9)

[2023] NSWSC 269

Supreme Court

New South Wales

Medium Neutral Citation:

R v Coss (No 9) [2023] NSWSC 269

Hearing dates:

16 March 2023

Date of orders:

16 March 2023

Decision date:

16 March 2023

Jurisdiction:

Common Law - Criminal

Before:

Dhanji J

Decision:

(1) That in the trial of Bruce Anthony Coss pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) the following witnesses are directed to give evidence by audio visual link from Inverell:

(a)   Peter Kennedy;

(b)   Darryl Blackman;

(c)    Alfred King.

Further, the Court confirms that:

(2) Dr Lorraine Du Toit-Prinsloo is a Government Agency Witness pursuant to s 5B(AA) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) and must, unless other otherwise directed, give evidence by audio visual link from a place within New South Wales. I am additionally satisfied with respect to this witness that the necessary audio visual links are available or will be available.

Catchwords:

CRIMINAL PROCEDURE – trial – judge alone - murder – evidence – application for three Crown witnesses to give evidence via AVL – not opposed – application for Government Agency witness to give evidence via AVL – not opposed – orders made

Category:

Procedural rulings

Parties:

Regina (Crown)
Bruce Anthony Coss (Accused)

Representation:

Counsel:
L Shaw (Crown)
M P King (Accused)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s):

2019/336236

Publication restriction:

Nil

EX TEMPORE Judgment (REVISED)

1. HIS HONOUR: The trial of Bruce Anthony Coss is due to resume before me on 27 March of this year. The trial is by Judge Alone. The Crown has made an application for a direction that three witnesses give evidence in the trial on its resumption by way of audio visual link. Those witnesses are Mr Peter Kennedy, Mr Darryl Blackman and Mr Alfred King.

2. The power to make a direction that evidence be given by way of audio visual link is found in s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). Pursuant to s 5B(2):

5B    Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally

…

(2)    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.

3. An affidavit of Darren Lawless of 13 March 2023 was read on the application. That affidavit annexed statements setting out the evidence that it is anticipated that those three witnesses will give. The affidavit also provided, by way of annexures, copies of emails confirming the availability of the necessary facilities to enable those witnesses to give evidence by way of audio visual link.

4. The application with respect to each of the witnesses was not opposed.

5. I am satisfied that the necessary facilities for the giving of evidence by way of AVL are available. Having regard to the absence of opposition on the part of the accused and the indication that there are no issues with respect to credibility, I am satisfied that there would be no unfairness in the direction being given with respect to any of the three witnesses. I am additionally not satisfied that any of the three witnesses will not give evidence as required of them pursuant to subpoenas issued to them.

6. The only remaining question then is whether the evidence can be more conveniently given in the courtroom. In that regard, I note that each of the witnesses, in order to give evidence in the courtroom, would have to travel some significant distance from where they ordinarily reside in the north west of New South Wales. The witnesses are relatively old, some older than others. Mr Kennedy is 65 years of age, Mr Blackman is 72 years of age and Mr King is 86 years of age. Having regard to the distance and the personal circumstances of the three witnesses, I am not of the view that the evidence can be more conveniently given in the courtroom. The requirements of section 5B(2) of the Act having been satisfied, I propose to make orders that the three witnesses give evidence by way of audio visual link.

7. The Crown also proposes to call Dr Lorraine Du Toit-Prinsloo by way of audio visual link. Dr Du Toit-Prinsloo is a Government Agency witness within the meaning of s 5B(AA) of the Evidence (Audio and Audio Visual Links) Act. I am satisfied that in relation to Dr Du Toit-Prinsloo the necessary facilities for her to give evidence by audio visual link are available.

8. I make the following orders:

1. That in the trial of Bruce Anthony Coss pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) the following witnesses are directed to give evidence by audio visual link from Inverell:

1. Peter Kennedy;

2. Darryl Blackman;

3. Alfred King.

Further, the Court confirms that:

2. Dr Lorraine Du Toit-Prinsloo is a Government Agency Witness pursuant to s 5B(AA) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) and must, unless other otherwise directed, give evidence by audio visual link from a place within New South Wales. I am additionally satisfied with respect to this witness that the necessary audio visual links are available or will be available.

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Decision last updated: 04 April 2023