R v Jenkin (No 3)

[2018] NSWSC 687

Supreme Court

New South Wales

Medium Neutral Citation:	R v Jenkin (No 3) [2018] NSWSC 687
Hearing dates:	07 May 2018
Decision date:	07 May 2018
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Application for witness to give evidence by audio visual link refused.
Catchwords:	CRIMINAL LAW – procedure – witnesses – evidence by way of audio visual link – where accused opposes use of technology – where witness a long distance from court – where witness’s preference is not to travel – right to confront accusers – Court’s unhappy experience with technology – interests of administration of justice – onus on party seeking to use technology
Legislation Cited:	Evidence (Audio and Audio Visual Links) Act 1998 NSW, s 5B
Category:	Procedural and other rulings
Parties:	Regina Mark Kenneth Jenkin
Representation:	Counsel: Mr M Fox (Crown) Mr P Lowe (Accused)   Solicitors: Director of Public Prosecutions NSW (Crown) O’Brien Solicitors (Accused)
File Number(s):	2015/00345562
Publication restriction:	No

EX TEMPORE Judgment (revised)

1. The Crown makes an application that the witness Aleta Serisier should give evidence by way of audio visual link. The application is based on s 5B of the Evidence (Audio and Audio Visual Links) Act 1998. The Act relevantly says in s 5B(3):

"In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.”

2. Counsel for the accused, Mr Lowe, opposes the making of the direction. The Crown relies on the distance between the witness and the Wollongong Court. While the witness's precise location is not disclosed, it is submitted, and I accept for the purpose of the application, that the witness is something like a five to six hour drive from the Wollongong Court. Whilst it is not precisely clear, it would take significantly longer than that for her to attend Wollongong using public transport. Without knowing her location there is an element of speculation, but it would seem that she would need to catch either a train or ‘plane to Sydney, and then a train to Wollongong or something similar to that. Either that or the police would make some other arrangement for her attendance.

3. The application by the Crown is based on the distance between the witness and the Court, and also on what are said to be, as I understand it, the witness's preferences to give evidence from a remote location.

4. There is no suggestion that any of the disentitling factors in s 5B(2) apply and I need not consider those matters further. [1]

   1. Section 5B(2) provides: “The court must not make such a direction if:

5. Mr Lowe, on behalf of the accused Mr Jenkin, submits that I would not be satisfied that it is in the interests of the administration of justice for the witness to give evidence by way of audio visual link. He puts to me that the evidence that the witness is expected to give in the Crown case will be disputed to some degree. This relates to her observation of the deceased Mr Dower shortly before, or in the days leading up to, the time it is thought that he died in or near the flat of the accused.

6. It is also put to me that she is expected to be an important witness for the defence in the sense that it is anticipated that she will be able to give further evidence as to the precise condition of Mr Dower at the time she saw him, and that this may support the defence case that Mr Jenkin was helping the deceased to detox or dry out from alcohol addiction.

7. The other matter raised on behalf of Mr Jenkin is that it is expected that the witness will be shown a large number of photographs during the course of her evidence in order to substantiate the matter that the defence seeks to elicit from her. It is clear that there are facilities available to enable her to be shown photographs, although the Court's experience with the use of technology has not always been a particularly happy one.

8. In any event, I have decided that the application should be resolved essentially on the basis of the onus. The onus is cast on the party trying to use the audio visual facility to establish that it is in the interests of the administration of justice for the court to make an order.

9. There is no evidence to suggest that Ms Serisier cannot travel to Wollongong. There is a general proposition, long standing in the law, that an accused person is entitled to "confront" their accusers. While this may not necessarily be a confrontation in the sense of the principle Crown witness giving evidence that the accused “did it”, it remains a general proposition that an accused person is entitled to have the witness give evidence in the courtroom.

10. In the absence of any further evidence as to the difficulties in having the witness travel here, I am not satisfied of the matters required in s 5B(3) of the Act.

11. For those reasons, the Crown's application is refused.

**********

Endnote

(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.”

Decision last updated: 16 May 2018