R v Jenkin (No 7)

[2018] NSWSC 728

Supreme Court

New South Wales

Medium Neutral Citation:	R v Jenkin (No 7) [2018] NSWSC 728
Hearing dates:	14 May 2018
Decision date:	14 May 2018
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Application for witness to give evidence by audio visual link granted.
Catchwords:	CRIMINAL LAW – procedure – witnesses – evidence by audio visual link – where accused opposes use of technology – interests of administration of justice – onus on party seeking to use technology – where witness suffers mental health issues
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 (Crown) O’Brien Solicitors (Accused)
File Number(s):	2015/00345562
Publication restriction:	No

Ex Tempore Judgment (revised)

1. The Crown makes an application under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 that a witness, Mr Dale Bitton, give evidence via an audio visual link to a location in the western suburbs of Sydney.

2. The application was canvassed a few days ago, and I indicated that the evidence relied upon was unsatisfactory. The Crown has now provided more evidence. What I now have is a letter from a Ms Audley, who is the Nurse Unit Manager of the Auburn and Merrylands Clinical Care and Coordination Team. She tells me that Mr Bitton is a "current consumer" of the clinic, which I take to mean a patient of, or client of, the clinic. In any event she indicates that Mr Bitton has a diagnosis of drug-induced psychosis and agoraphobia following upon a history of childhood trauma. She indicates that requiring him to appear in person to give evidence of the events may contribute to a relapse in his mental health problems and result in another presentation to a hospital.

3. I have to say the evidence is not the most satisfactory that one might have hoped for, given that it is well known that the accused opposes the making of an order. Nevertheless, there has been no real challenge to what is said in that letter.

4. What has been put to me is that on 27 April 2017, Mr Bitton appeared in person and gave evidence at the committal proceedings. I do not make very much of that, given the length of time that has passed since then. It is also put, and I think this is more relevant, that he has been required to appear in court on a number of occasions as a defendant in summary criminal proceedings, most recently at the Parramatta Local Court on 3 May 2018. He presumably appeared on that date, although that really is an inference, but I think a fair enough inference to draw for the purpose of the present application.

5. Section 5B(2) sets out a number of factors which mean that the court must not make a direction that a person give evidence by audio visual link. Those are largely practical matters, and none of them are said to arise here. Here, s 5B(3) is the relevant section. It provides:

In a proceeding in which a party opposes the making of a direction … 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.

6. That discretion, if it is so properly described, or judgment perhaps, is obviously cast in very wide terms, and the circumstances in which the Court will make an order or a direction when it is opposed by a party, particularly a party who is a criminal defendant in serious proceedings such as the present, will obviously vary from case to case.

7. Having considered the section, the contents of the letter, and the matters raised by Mr Lowe, I am satisfied that it is in the interests of the administration of justice to make a direction that Mr Bitton give evidence from a remote location by way of audio visual link. If difficulties arise of a practical nature or otherwise, then I will rescind that direction and he can come to Wollongong. However, at this stage I am satisfied the risk to his mental health of appearing in person in Wollongong is such that the provision is satisfied, and I make the direction.

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Decision last updated: 22 May 2018