R v Sigalla - [2016] NSWSC 1178

Supreme Court

New South Wales

Medium Neutral Citation: R v Sigalla [2016] NSWSC 1178
Hearing dates: 19 August 2016
Date of orders: 19 August 2016
Decision date: 19 August 2016
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), order that Christopher Gerard Kelliher give evidence in the trial of Mr Sigalla, the accused, by way of audio-visual link from the facility maintained by The Video Conference Centre at 8th Floor, 260 Madison Ave, NY 10016.

Catchwords: EVIDENCE – application for evidence to be given by audio visual link in a criminal trial – objection taken by accused – concession by counsel for accused that witness is an important witness – consideration of factors in s 5B of Evidence (Audio and Audio Visual Links) Act 1988 – application granted
Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1988 (NSW), s 5B
Cases Cited: R v Wilkie [2005] NSWSC 794
Category: Procedural and other rulings
Parties: Regina
Andrew John Sigalla
Representation:
Counsel:
P McDonald SC (Crown)
WP Brewer (Accused)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Brendan Pigott (Accused)

File Number(s): 2013/1511552013/355116

Judgment – Ex tempore

The Crown moves by notice of motion filed on 30 May 2016 for an order under s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (NSW) (the Act) that the evidence of Christopher Kelliher be given by way of audio visual link from a facility maintained at the video conference centre at 8th floor, 260 Madison Avenue, New York.
In support of the application the Crown relies on affidavits sworn or affirmed by solicitors working for the Commonwealth Director of Public Prosecutions in which they depose to communications with Mr Kelliher over the last few months relating to his availability and willingness (or lack thereof) to come to Australia to give evidence as a witness for the prosecution in the trial by jury of Mr Sigalla, which is listed to commence in October 2016.
The Crown has also tendered material which indicates the importance of the evidence of Mr Kelliher to the Crown case.
It is not necessary for present purposes to outline the importance of the evidence of Mr Kelliher to the Crown case, as Mr Brewer, who appears on behalf of the accused, has conceded that he is an important witness for the prosecution.
Section 5B of the Act relevantly provides:

Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally
(1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than…

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 Sigalla

Details

AGLC: R v Sigalla [2016] NSWSC 1178
Case: [2016] NSWSC 1178
Decision Date: 19 August 2016

CaseChat Overview and Summary

In the matter of R v Sigalla, the accused was on trial for serious criminal charges. The prosecution sought to present evidence from a key witness, who was located overseas, via an audio-visual link. The accused objected to this mode of evidence presentation, despite counsel for the accused acknowledging the witness's importance to the case. The court was tasked with determining whether the evidence should be permitted under the Evidence (Audio and Audio Visual Links) Act 1988. The central legal issue was whether the application to present the evidence via audio-visual link complied with the statutory criteria set out in section 5B of the Act.

The court examined the factors outlined in section 5B, which include the importance of the witness's evidence, the witness's availability, and the feasibility of the witness attending in person. Given that counsel for the accused conceded the witness's importance, the court focused on whether the other factors favoured permitting the evidence to be given via the proposed method. The court found that the witness's unavailability to attend in person, coupled with the feasibility of the proposed method, supported the application. Consequently, the court granted the application, allowing the evidence to be presented as proposed by the prosecution.

The ruling underscored the importance of balancing the need to ensure justice is served with the practicalities of conducting a trial, especially in cases involving international witnesses. The court's decision highlighted the importance of adhering to statutory provisions while considering the specific circumstances of each case. The trial proceeded with the evidence being presented via the approved audio-visual link, ensuring the witness's testimony was heard despite their physical absence.

Orders