R v Sutton

Case [2015] QSC 110

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sutton [2015] QSC 110

PARTIES:

R
v
SUTTON, Paul Bruce

(respondent)

FILE NO/S:

SC No 678 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

15, 23 April 2015

JUDGE:

Burns J

ORDER:

Directions made on 23 April 2015 that:

1. pursuant to s 39PB of the Evidence Act 1977, Alex Olumbe, Diane Howard, Brendan Young and Brett Schnitzerling give their evidence in person at the trial;

2. pursuant to s 39R of the Evidence Act 1977, the evidence of Melissa Brose, Candace Harper, Lisa Presnell, Paul Presnell, Rickey Hazard, Wayne Bushnell, Jason English, Jake Bayliss, Waverley Wilton, Greer Wade, Hayley Borg, Toni Phillips‑Petersen, Chantelle Richardson, Robert Howard, Bryce Jensen, Graeme Howell, Kerry Johnson and Duane Frank be received at the trial by audio visual link;

3. pursuant to s 39R of the Evidence Act 1977, the evidence of Alexander Campbell be received at the trial by audio link.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WITNESSES – POWERS OF JUDGE – OTHER MATTERS – where the accused has been charged with manslaughter under ss 300, 303 and 310 of the Criminal Code (Qld) – where the Crown makes application pursuant to s 39PB of the Evidence Act 1977 for expert witnesses to give evidence in person at the trial – where the application is unopposed – where the expert witnesses will need to refer to photographic and other exhibits – where some of the evidence of the expert witnesses may be controversial – whether it is in the interests of justice for witnesses to give evidence in person

CRIMINAL LAW – PROCEDURE – WITNESSES – POWERS OF JUDGE – OTHER MATTERS – where the accused has been charged with manslaughter under ss 300, 303 and 310 of the Criminal Code (Qld) – where Crown makes application pursuant to s 39R of the Evidence Act 1977 and r 53 of the Criminal Practice Rules 1999 for witnesses to give evidence at the trial by audio visual link and audio link – where the application is unopposed – where the evidence of the witnesses is uncontroversial – whether Crown required to make out case for use of audio visual link and audio link – whether it is in the interests of justice for witnesses to give evidence via audio visual link and audio link

Criminal Practice Rules 1999 (Qld), r 53
Evidence Act 1977 (Qld), s 39PB, s 39R

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Details
AGLC
R v Sutton [2015] QSC 110
Case
[2015] QSC 110
Decision Date

CaseChat Overview and Summary

In the case of R v Sutton, the accused was charged with manslaughter under sections 300, 303, and 310 of the Criminal Code (Qld). The Crown applied for expert witnesses to give their evidence in person at the trial, while also applying for other witnesses to give their evidence via audio visual link or audio link. The application was unopposed. The court had to determine whether it was in the interests of justice for the witnesses to give evidence in person or via audio visual link and audio link.

The legal issues involved the application of sections 39PB and 39R of the Evidence Act 1977 and rule 53 of the Criminal Practice Rules 1999. The court had to decide whether the Crown was required to make out a case for using audio visual link and audio link, and whether it was in the interests of justice for witnesses to give evidence via these means. The court considered the statutory tests under sections 39PB and 39R, and the inclusive list of considerations under section 39PB(4) to determine if oral evidence should be given.

The court held that it was in the interests of justice for the expert witnesses to give their evidence in person, as they would need to refer to photographic and other exhibits, and some of their evidence may be controversial. On the other hand, the court held that it was in the interests of justice for the other witnesses to give their evidence via audio visual link or audio link, as their evidence was uncontroversial. The court did not find it necessary for the Crown to make out a case for using audio visual link and audio link, as the statutory tests under sections 39PB and 39R were discretionary and not prescriptive.

The court made directions pursuant to sections 39PB and 39R of the Evidence Act 1977 and rule 53 of the Criminal Practice Rules 1999, specifying which witnesses would give their evidence in person and which would give their evidence via audio visual link or audio link.

Orders

Orders of the court

Directions made on 23 April 2015 that:

1. pursuant to s 39PB of the Evidence Act 1977, Alex Olumbe, Diane Howard, Brendan Young and Brett Schnitzerling give their evidence in person at the trial;

2. pursuant to s 39R of the Evidence Act 1977, the evidence of Melissa Brose, Candace Harper, Lisa Presnell, Paul Presnell, Rickey Hazard, Wayne Bushnell, Jason English, Jake Bayliss, Waverley Wilton, Greer Wade, Hayley Borg, Toni Phillips‑Petersen, Chantelle Richardson, Robert Howard, Bryce Jensen, Graeme Howell, Kerry Johnson and Duane Frank be received at the trial by audio visual link;

3. pursuant to s 39R of the Evidence Act 1977, the evidence of Alexander Campbell be received at the trial by audio link.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 39R of the Evidence Act 1977 provides:“Queensland courts may take evidence and submissions from external location(1) Subject to any rules of the court, the court may, on the application of a party to the proceeding before the court, direct that a person appear before, or give evidence or make a submission to, the court by audio visual link or audio link from a location inside or outside Queensland, including a location outside Australia.(2) The court may, at any time, vary or revoke a direction made under this section on its own initiative or on the application of a party to the proceeding.” Rule 53 of the Criminal Practice Rules 1999 is similar in effect to s 39R. The rule provides:“The court may decide to receive evidence or submissions by telephone, video link or another form of communication in a proceeding.” Section 39PB was inserted in the Evidence Act 1977 on 15 August 2014,[7] and sets the default position for the reception of evidence from expert witnesses – that is, subject to any rules of court, such evidence is to be given by audio visual link or audio link unless the court is satisfied in the interests of justice that the expert should give oral evidence. The provision applies to any proceeding before a Queensland court.[8] In deciding whether it is in the interests of justice that oral evidence be given, s 39PB(4) supplies an inclusive list of considerations to which the court may have regard.[9][7] See Criminal Law Amendment Act 2014, s 50.[8] Section 39PA.[9] See s 39PB(5) which makes it clear that the court is not limited to a consideration of those matters when deciding whether it is in the interests of justice to make a direction under subsection (3). Section 39R is an older provision. It was introduced along with other provisions of Part 3A of the Evidence Act 1977 by the Audio Visual and Audio Links Amendment Act 1999. By and large, Part 3A implements an agreement reached by the Standing Committee of Attorneys‑General to enact provisions enabling the taking or receiving of evidence and the making or receiving of submissions by audio visual link or audio link within Australia.[10] Unlike s 39PB, s 39R is expressed as a general discretionary power without any prescription of the test to be applied by the court in the exercise of that discretion. In this, its free expression is akin to r 53 of the Criminal Practice Rules 1999. [10] See Explanatory Notes to the Audio Visual and Audio Links Amendment Bill 1999. It might be thought curious that the Legislature incorporated a statutory test in the 2014 provision[11] in circumstances where such an approach had not been taken with respect to either of the 1999 provisions.[12] However, as appears from the second reading speech for the relevant Bill,[13] the inclusion of “an express statement that the use of audio visual and audio links in a proceeding (should) only occur where it was in the interests of justice” was considered, but then rejected because it was thought “inconceivable that the courts would not consider the interests of justice when deciding whether or not to allow the use of audio visual and audio links”.[14] [11] Section 39PB.[12] Section 39R of the Evidence Act 1977 and r 53 of the Criminal Practice Rules 1999.[13] Audio Visual and Audio Links Amendment Bill 1999.[14] Queensland, Parliamentary Debates (13 April 1999), p 960.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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