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R v Early (No 4)

R v Early (No 4)

Case [2023] NSWSC 505 9 May 2023

Evidence Law

Admissibility of Evidence

Causation

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Early (No 4) [2023] NSWSC 505
Hearing dates: 8 May 2023; 9 May 2023
Date of orders: 9 May 2023
Decision date: 09 May 2023
Jurisdiction: Common Law
Before: Yehia J
Decision:
I refuse the application for a direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) that Barry Sutton give evidence by way of audio-visual link

Catchwords:
CRIMINAL LAW — Evidence — Murder trial — Evidence by audio-visual link — Application by prosecutor for AVL direction — Where application opposed — Where the witness lives interstate — Where the witness is 74-years-old and has medical issues — Where evidence is relied upon as an admission by the accused — Where medical evidence confirms that the witness is fit to travel interstate — Interests of the administration of justice — Assessment of credibility and reliability — Application for direction refused

Legislation Cited:
Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ss 5B, 5B(2), 5B(3)

Cases Cited:
Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250
KN v R (2017) NSWLR 767; [2017] NSWCCA 249
R v Abdaly; R v Hooseinishoja (No 4) [2022] NSWSC 1529
R v Ngo (2003) 47 NSWLR 55; [2003] NSWCCA 82
Rooney v AGL Energy Limited (No 2) [2020] FCA 942

Category: Procedural rulings
Parties: Stanley Bruce Early (Accused)
Rex (Crown)
Representation: Counsel:
J Clarke (Accused)
K McKay SC (Crown)
Solicitors:
Schumer Lawyers (Accused)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2021/00174129

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JUDGMENT

Stanley Bruce Early, the accused, has pleaded not guilty to one count that he, on or about 13 January 1987, in Randwick in the State of New South Wales, did murder Raymond Frederick Keam.
The trial commenced on 1 May 2023, with the jury being empanelled on 2 May 2023.
At some time between midnight and 6 am on 13 January 1987, Mr Keam was assaulted. It is the Crown case that it was the accused who either assaulted Mr Keam, or else was part of a group who assaulted him, causing his death. At approximately 6:06 am, Mr Keam was found deceased in Alison Park, Randwick. There were scuff marks on his trouser legs just below the knees and dirt and stains on the t-shirt he was wearing. One of his trouser pockets was turned out and the only personal item he had on him was a small plastic comb. Mr Keam’s “Datsun 180B” was found parked on Francis Street, at the northern end of the park. Missing from Mr Keam’s possession were his keys.
A post-mortem was completed following the death of Mr Keam. A review of the post-mortem and evidence was conducted by a forensic pathologist in 2021. It was determined that Mr Keam died due to a subarachnoid haemorrhage, most likely caused by an impact to the face, side of the head, or neck. Mr Keam was struck a number…

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 Early (No 4)

Details

AGLC: R v Early (No 4) [2023] NSWSC 505
Case: [2023] NSWSC 505
Decision Date: 09 May 2023

CaseChat Overview and Summary

In the matter of R v Early (No 4), the accused faced a murder trial before the Supreme Court of Victoria. The key issue was whether a 74-year-old witness, who lived interstate and had medical issues, could be compelled to give evidence via audio-visual link (AVL) rather than in person. The prosecution sought a direction for AVL, arguing that the evidence was crucial and an admission by the accused. The defence opposed the application on the grounds of the witness's age and health, and the need for the jury to assess the witness's credibility and reliability in person.

The court considered the principles of the administration of justice and the rights of the accused, including the right to confront witnesses. It examined the witness's fitness to travel, as confirmed by medical evidence, and weighed this against the potential prejudice to the accused if the witness gave evidence remotely. The court also considered the importance of the evidence and the extent to which it could be considered an admission by the accused. Ultimately, the court concluded that the interests of justice required the witness to give evidence in person, allowing the jury to fully assess the witness's credibility and reliability.

Given the significance of the evidence and the need for the jury to observe the witness, the court refused the prosecutor's application for a direction to give evidence via AVL. The decision highlighted the importance of in-person testimony, particularly in cases where the evidence is central to the case and potentially an admission by the accused. The court emphasised the need for a balanced approach that considers the rights of all parties, including the accused's right to confront witnesses face-to-face.

Orders