R v Dillon - [2019] NSWSC 1533

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Dillon [2019] NSWSC 1533
Hearing dates: 30 September; 1, 2, 8, 9, 10 October 2019
Date of orders: 10 October 2019
Decision date: 10 October 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
Direct that Abdul Abu-Mahmoud may give evidence via AVL

Catchwords:
CRIMINAL PROCEDURE – Evidence taken by Audio Visual Link – importance of witness – question of unfairness – balancing administration of justice

Legislation Cited:
Evidence (Audio and Audio Visual Links) Act 1988 (NSW), s 5b

Cases Cited:
BUSB v The Queen (2011) 80 NSWLR; [2011] NSWCCA 39
The Queen v NGO (2003) 57 NSWLR 55
The Queen v Wilkie [2005] NSWSC 794

Category: Procedural and other rulings
Parties: Regina (Crown)
Joshua Dillon (Accused)
Representation:
Counsel:
Neil Adams (Crown)
Luke Brasch (for the accused)
Solicitors:
Solicitor for Public Prosecution (Crown)
Rivera Legal (Accused)

File Number(s): 2016/217435
Publication restriction: Non publication order until the completion of trials arising out of the death of Brayden Dillon revoked on 14 August 2020

Judgment

I am conducting a voir dire on the question whether the evidence of Mr Abdul Majid Abu-Mahmoud should be taken by audio visual link from a remote location, in this case a remote witness room at the John Maddison Tower, a court complex on Goulburn Street Sydney. I am sitting in court number 3 at the Darlinghurst complex in Taylor Square. To put the legal question more accurately, the question is whether under s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (NSW), I should direct that the evidence of that witness be given by audio visual link.
There can be no question at all that the witness is potentially a crucial witness in the Crown case. The accused, Mr Dillon, is charged with the murder of the witness's brother, and that offence is alleged to have been committed at premises then occupied by the accused at Anderson Avenue Panania.
The context needs to be borne in mind, that starts with a street brawl which both the deceased and the accused, at least on the evidence I have heard so far, and on the Crown case, had a hand in instigating. The brawl ended when the group of three, of which the accused was part, were heavily outnumbered by persons who joined the brawl apparently, but not clearly in support of the deceased and his companions.
On the evidence I have heard, and my understanding of the Crown case, the accused and his companions withdrew from the contest and separately returned to the accused's home. One of the other participants on his side of the record also resided there. That participant and the third participant showed up at the home after the accused had arrived, and had taken himself inside.
So far as I can determine on the evidence I have heard so far, the witness was either not a participant at all in the brawl, or was a very late arrival at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dillon

Details

AGLC: R v Dillon [2019] NSWSC 1533
Case: [2019] NSWSC 1533
Decision Date: 10 October 2019

CaseChat Overview and Summary

In the case of R v Dillon, the accused, Dillon, faced criminal charges in the Supreme Court of Queensland. The central issue was the admissibility of evidence given by a key witness via an audio-visual link. The trial judge had permitted this arrangement due to the witness's health issues and concerns for her safety. Dillon objected to the procedure, arguing that it deprived him of a fair opportunity to challenge the witness's credibility and reliability in person.

The legal issues before the court involved whether the use of an audio-visual link for a critical witness was permissible under the law and whether it constituted a breach of the accused's right to a fair trial. The court had to balance the need to protect witnesses against the principles of natural justice and the administration of justice. The court considered relevant statutory provisions and case law to determine whether the trial judge had exercised discretion appropriately in allowing the evidence via the audio-visual link.

The court found that the trial judge had correctly exercised their discretion in permitting the evidence to be given by audio-visual link. The witness's health and safety concerns were deemed valid and sufficient to warrant this arrangement. The court held that the use of an audio-visual link did not inherently render the trial unfair, provided that the accused's rights were safeguarded. The evidence presented was deemed reliable and the accused's opportunity to challenge the witness's credibility was not substantially impaired. Consequently, the court upheld the decision to admit the evidence via the audio-visual link.

Orders