R v Macdonald; R v Maitland (No 6)

[2022] NSWSC 1270

Supreme Court

New South Wales

Medium Neutral Citation:

R v Macdonald; R v Maitland (No 6) [2022] NSWSC 1270

Hearing dates:

20 September 2022

Date of orders:

20 September 2022

Decision date:

20 September 2022

Jurisdiction:

Common Law - Criminal

Before:

Dhanji J

Decision:

(1)   An audio visual link be established from the Supreme Court, Darlinghurst, with respect to the following witness:

Name:                     Julie Moloney

Remote location:    Office of the Director of Public Prosecutions Newcastle office

Date:                       20 September 2022

Time:                      Approximately 10.15am

(2)   The Office of the Director of Public Prosecutions pay all reasonable costs associated with these arrangements.

Catchwords:

CRIMINAL PROCEDURE – trial – judge alone – evidence – application for Crown witness to give evidence via AVL – application not opposed – orders made

Legislation Cited:

Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B

Category:

Procedural rulings

Parties:

Rex (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 Crown makes an application for the witness, Ms Julie Moloney, to give evidence in this trial by way of audio visual link. The power to make a direction that evidence be given by way of audio visual link is found in s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (the Act). Pursuant to s 5B(2):

5B    Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally

…

(2)    The court must not make such a direction if—

(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.

2. The application made by the Crown was not opposed by either of the accused. I was informed by the Crown from the bar table, without opposition from either accused, of various matters with the result that I am not satisfied of any of the matters in s 5B(2)(a) to (d). In particular, I am positively satisfied that the necessary facilities are available in the Director of Public Prosecutions’ office in Newcastle.

3. On the basis of the attitude to the application of both accused, I am satisfied there would be no unfairness to any party to the proceedings.

4. I am positively satisfied that the witness will give evidence. The only real matter requiring evaluation is whether the evidence can be more conveniently given in the courtroom where the trial is being held.

5. The circumstances in which the witness is being called to give evidence is that this is a retrial. She previously gave evidence in the first trial and her evidence, given at that first trial, has been tendered in this trial. The result is that, as I understand it, the additional evidence to be given at this trial is relatively brief and I am informed by both accused that it is not significantly contentious.

6. Against that, the witness lives close to Newcastle. I am told she has care obligations in relation to an elderly relative. The circumstances are such that travel to Sydney and back, in the order of four hours, would interfere with her capacity to provide that care.

7. In those circumstances, I am not satisfied that the evidence can more conveniently be given in the courtroom and, indeed, I am positively satisfied that it is more convenient that the evidence be given by way of audio visual link.

8. I am therefore satisfied that an order should be made, pursuant to s 5B(1) of the Act, that the evidence of the witness, Julie Moloney, be given by way of audio visual link.

9. I make the following orders:

1. An audio visual link be established from the Supreme Court, Darlinghurst, with respect to the following witness:

Name:          Julie Moloney

Remote location:    Office of the Director of Public Prosecutions Newcastle office

Date:           20 September 2022

Time:           Approximately 10:15am

2. The Office of the Director of Public Prosecutions pay all reasonable costs associated with these arrangements.

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Decision last updated: 21 September 2022