R v Macdonald; R v Maitland

[2022] NSWSC 1207

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Macdonald; R v Maitland [2022] NSWSC 1207
Hearing dates:	18 August 2022
Date of orders:	18 August 2022
Decision date:	18 August 2022
Jurisdiction:	Common Law - Criminal
Before:	Dhanji J
Decision:	Mr Maitland is directed to give evidence by way of a combination of audio and audio visual link in these proceedings with respect to the making of the judge alone election.
Catchwords:	CRIMINAL PROCEDURE – trial – evidence in respect of judge alone application – unrepresented – evidence to be given by audio visual link
Legislation Cited:	Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B(2)
Category:	Procedural rulings
Parties:	Regina (Crown) Ian Michael Macdonald (Accused) John William Maitland (Accused)
Representation:	Counsel: P Hogan (Crown) R Rajalingam (Macdonald) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Michael Bowe Solicitors (Macdonald) J W Maitland (self-represented)
File Number(s):	2015/59990; 2015/59940
Publication restriction:	Nil

EX TEMPORE JUDGMENT (revised)

1. HIS HONOUR: In this matter the accused are charged on indictment in relation to, in the case of Mr Macdonald, offences of wilful misconduct in public office and in the case of Mr Maitland, that he did aid and abet council and procure the commission of the offences by Mr Macdonald. In each case there are two such charges. Mr Macdonald's charge relates with respect to the first count, to events on or about 21 August 2008 and in relation to the second count, to events on or about 15 December 2008.

2. The matters have previously been to trial and are subject to a re-trial which is due to commence before me on 5 September. Each of the accused has indicated that they wish to proceed by way of a judge alone trial and each has provided a form to the Court indicating that desire.

3. The Crown has indicated that it does not oppose the making of such an order. However, in circumstances in which Mr Maitland is unrepresented, it is my view that it is desirable that he give some short evidence to confirm the making of that election and the receipt of that advice.

4. Mr Maitland has been appearing at the various mentions of this matter from Victoria where I understand he currently resides. Given that it is desirable that the order be made prior to the date the trial is listed to commence, it is my view that it is desirable that a direction be given that Mr Maitland be able to give that evidence by way of an audio visual link.

5. I note that due to some problems with the technology, the link to Mr Maitland is such that the Court is able to both see Mr Maitland and hear Mr Maitland. Unfortunately, Mr Maitland is not able to see the Court but is able to hear the Court. But given that I am able to watch him speak as he gives his evidence, I am satisfied that that is not an impediment to making an order that the evidence be given by way of what is in effect hybrid audio and audio visual link.

6. In coming to my view that it is appropriate to make such an order, I am satisfied that the necessary facilities are available and that it is not a case where the evidence can more conveniently be given in the courtroom given Mr Maitland's residence and the relatively short issue involved. I am not of the view that giving a direction would be unfair to any party and I am also satisfied that Mr Maitland, that is the person in respect of whom the direction is to be given, will give evidence: see Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B(2)

7. Having regard to those matters, I direct that Mr Maitland give evidence by way of a combination of audio and audio visual link in these proceedings with respect to the making of the judge alone election.

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Amendments

08 September 2022 - Amendment to coversheet

Decision last updated: 08 September 2022