R v Early (No 5) - [2023] NSWSC 580

Supreme Court

New South Wales

Medium Neutral Citation: R v Early (No 5) [2023] NSWSC 580
Hearing dates: 16 May 2023; 17 May 2023; 18 May 2023
Date of orders: 18 May 2023
Decision date: 18 May 2023
Jurisdiction: Common Law
Before: Yehia J
Decision:
I grant the application for a direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (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 witness lives interstate — Where witness had a fall and injured himself — Where witness has been diagnosed with pneumonia — Where witness still suffers chest pain

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

Cases Cited:
R v Early (No 4) [2023] NSWSC 505

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

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 Crown has previously moved on a Notice of Motion seeking a direction that the witness, Barry Sutton, give evidence by audio-visual link (“AVL”). I refused to make that direction and provided reasons on 9 May 2023. That judgment sets out, in brief form, the Crown case against the accused. It is not necessary to again summarise the allegation in this judgment.
By way of further Notice of Motion, dated 15 May 2023, the Crown seeks an order pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (NSW), directing that Barry Sutton give evidence in the proceedings by audio-visual link from a place other than the courtroom. The application is opposed.
On 8 May 2023, Barry Sutton suffered a fall in his bathroom during which his head impacted with the bathtub. He was bedridden for two days and refused to go to a hospital because he was fearful of contracting COVID-19. It was later reported that Mr Sutton was suffering “terrible pain” and suspected that he had broken ribs.
This event was unknown to prosecuting authorities until 10 May 2023, when Detective Tam successfully contacted Penney Sutton, the witness’ wife, to notify the witness that the application for him to give evidence via AVL was unsuccessful, and to make arrangements for his travel to Sydney.
It was during that telephone conversation on 10 May 2023, that Detective Tam became aware that Barry Sutton had suffered the fall and had refused to go to a hospital for two days. At approximately 1:35pm on 10 May 2023, Detective Tam received a call from Mrs Sutton, advising that Barry Sutton had decided to call an…

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 5)

Details

AGLC: R v Early (No 5) [2023] NSWSC 580
Case: [2023] NSWSC 580
Decision Date: 18 May 2023

CaseChat Overview and Summary

In the case of R v Early (No 5), the prosecution sought to adduce evidence through an audio-visual link in a murder trial. The defendant opposed this application, citing the witness's interstate residence, a recent fall that resulted in injury, and a diagnosis of pneumonia, which still caused chest pain. The trial judge was required to determine whether the application should be granted, balancing the interests of justice against the potential difficulties faced by the witness.

The court considered the provisions of the Evidence Act, which allow for evidence to be given via audio-visual link when it is in the interests of justice. The prosecution argued that the witness's evidence was crucial to the case, and the application should be granted to ensure the witness could testify. The defence countered that the witness's health and the circumstances of the fall could result in significant difficulties during the trial, and the evidence should not be admitted via audio-visual link.

After evaluating the circumstances, the court found that the application should be granted. The judge concluded that the witness's evidence was of significant importance to the case, and the potential difficulties faced by the witness did not outweigh the interests of justice. The court determined that the evidence could be given via audio-visual link, and the trial proceeded accordingly.

The court ordered that the witness's evidence be adduced through an audio-visual link. This decision allowed the crucial evidence to be presented despite the witness's health issues and the practical difficulties associated with his interstate residence. The trial continued with this evidence, contributing to the final outcome of the case.

Orders