R v Knight (No 1) - [2023] NSWSC 195

Supreme Court

New South Wales

Medium Neutral Citation: R v Knight (No 1) [2023] NSWSC 195
Hearing dates: 08 March 2023
Date of orders: 08 March 2023
Decision date: 08 March 2023
Jurisdiction: Common Law
Before: Yehia J
Decision:
(1) Pursuant to s 20F of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the direction that Kenneth Knight appear in-person at the Supreme Court of New South Wales at Bourke for Sentence on 30 March 2023 and 31 March 2023 is revoked
(2) A warrant is issued for Kenneth Knight’s appearance at the Supreme Court of New South Wales at Bourke for Sentence on 30 March 2023 and 31 March 2023 by way of audio-visual link in accordance with s 5BB(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

Catchwords:
CRIME — Application for the applicant to appear by audio-visual link for his sentencing proceedings — Where both the deceased and applicant come from the Bourke Indigenous community— Where application is opposed by the Crown — Where Crown relies upon the importance of Indigenous “cultural values and principles” requiring the applicant to be on country when sentenced — Where there is a legislative presumption for an “accused detainee” to appear before the Court by audio-visual link — Whether it is in the “interests of the administration of justice” for the applicant to appear physically before the Court — Recognition of the willingness of the criminal justice system to acknowledge and take into account cultural aspects in sentencing — Where the physical appearance of the applicant entails a lengthy and uncomfortable transfer — Application granted

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A
Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ss 3, 5BB, 20F

Category: Procedural rulings
Parties: Kenneth James Knight (Applicant)
Rex (Respondent)
Representation:
Counsel:
I Nash (Applicant)
J Stanhope (Respondent)
Solicitors:
Legal Aid Commission (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2021/00071703

Judgment

Kenneth James Knight, the applicant in these proceedings, pleaded guilty in the Local Court to one count of murder. The plea of guilty demonstrates his acceptance that he committed a voluntary and deliberate act causing the death of his partner, Cassandra Brown, with an intention to at least inflict grievous bodily harm.
On 7 October 2022, the applicant was arraigned in the Supreme Court of New South Wales before her Honour, Wilson J. He adhered to his plea of guilty. The proceedings were listed for Sentence at the Supreme Court of New South Wales sitting in Bourke on 30 March 2023 and 31 March 2023. An order was made that the applicant appear in-person for the sentencing proceedings. It appears that the parties did not raise the issue of whether the applicant should appear via audio-visual link (AVL). Her Honour was not taken to s 5BB(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (the Act), which provides a presumption in favour of an “accused detainee”…

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 Knight (No 1)

Details

AGLC: R v Knight (No 1) [2023] NSWSC 195
Case: [2023] NSWSC 195
Decision Date: 08 March 2023

CaseChat Overview and Summary

In the matter of R v Knight, the applicant sought to appear for his sentencing hearing via an audio-visual link. The deceased in the case and the applicant both belonged to the Bourke Indigenous community. The Crown opposed the application, asserting the significance of Indigenous cultural values and principles that demanded the applicant's physical presence at the court for sentencing. The application came against the backdrop of a legislative presumption favouring an "accused detainee" to appear before the court via an audio-visual link. The central legal issue was whether it would be in the interests of the administration of justice for the applicant to physically appear in court, especially considering the potential acknowledgment of cultural aspects in sentencing and the logistical challenges of transporting the applicant.

The court considered the importance of Indigenous cultural values and principles, acknowledging that the criminal justice system should recognise and incorporate these aspects. The Crown's argument emphasised the need for the applicant to be physically present in court to adhere to cultural requirements. However, the court also weighed the statutory presumption in favour of an audio-visual link appearance and the potential hardships associated with transporting the applicant over a significant distance. The court recognised the need to balance the administration of justice with the cultural considerations presented. Ultimately, the court granted the application, recognising the applicant's willingness to acknowledge and take into account cultural aspects in sentencing and the logistical difficulties of physically transporting the applicant.

The court determined that the application for the applicant to appear via an audio-visual link was in the interests of the administration of justice. The lengthy and uncomfortable journey for the applicant was a significant factor in the decision. The court acknowledged the importance of Indigenous cultural values and principles but found that the statutory presumption in favour of an audio-visual link appearance outweighed the Crown's opposition in this instance. The applicant's appearance via an audio-visual link was thus approved, reflecting a balanced approach to cultural considerations and practical logistics.

Orders