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R v Warwick (No.26)

R v Warwick (No.26)

Case [2018] NSWSC 1079 13 July 2018

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.26) [2018] NSWSC 1079
Hearing dates: 5 July 2018, 6 July 2018
Date of orders: 13 July 2018
Decision date: 13 July 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Direct that until further order, pursuant to s 5BA(3) of the Evidence (Audio and Audio Visual Links) Act 1998, the Accused is not required to appear in court in person for the remainder of his trial, which is due to recommence on 16 July 2018.
(2) Direct that, until further order, the Accused be present at the trial by audio visual link from the place at which he is held in custody, the Metropolitan Remand and Reception Centre, Silverwater Correctional Complex.
(3) Liberty to apply on short notice to vacate or vary these orders.

Catchwords: CRIMINAL PROCEDURE – trial involving serious indictable offences including four counts of murder – application by accused to appear in court via audio visual link rather than in person for the duration of his trial – power to give such a direction under the Evidence (Audio and Audio Visual Links) Act 1998, s 5BA – consent of the accused and the Crown – where trial is estimated to last for six months – where health issues experienced by the accused have previously been exacerbated by transport from custody to court – consideration of principles relating to an accused’s right to be present at trial
Legislation Cited: Criminal Procedure Act 1986
Evidence (Audio and Audio Visual Links) Act 1998
Evidence (Audio and Audio Visual Links) Amendment Act 2001
Cases Cited: Boros v O’Keefe [2017] VSC 560
Eastman v R (1997) 76 FCR 9
Jamal v R [2012] NSWCCA 198; (2012) 223 A Crim R 585
Lawrence v R [1933] AC 699
R v Abrahams (1895) 21 VLR 343
R v Bonacci [2015] VSC 121
R v Cornwell (1972) 2 NSWLR 1
R v IB [2017] ACTSC 366
R v Jones [1998] SASC 7021; (1998) 72 SASR 281
R v McHardie & Danielson [1983] 2 NSWLR 733
R v Mokbel (2010) 30 VR 115
R v O’Neill (2002) 81 SASR 359
R v Rigney (1988) 48 SASR 72
R v Serrano (No 5) (2007) 16 VR 360
R v Vernell [1953] VLR 590
R v Warwick (No.2) [2017] NSWSC 1225
R v Warwick (No.5) [2018] NSWSC 70
R v Warwick (No.6) [2018] NSWSC 234
R v Warwick (No.20) [2018] NSWSC 656
R v Warwick (No.21) [2018] NSWSC 654
Williams v R [2012] NSWCCA 286; (2012) 229 A Crim R 67
Texts Cited: Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 June 2001
Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Accused)
Representation:
Counsel:
K McKay / G Christofi (Crown)
A R Conolly / E Ramsay (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)

File Number(s): 2015/222068
Publication restriction: Not to be published until further order of…

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 Warwick (No.26)

Details

AGLC: R v Warwick (No.26) [2018] NSWSC 1079
Case: [2018] NSWSC 1079
Decision Date: 13 July 2018

CaseChat Overview and Summary

The case of R v Warwick (No. 26) involved a defendant who faced multiple serious indictable offences, including four counts of murder. The dispute centred on the defendant's application to appear in court via an audio-visual link rather than in person for the entire duration of his trial. The application was made under the Evidence (Audio and Audio Visual Links) Act 1998, specifically section 5BA, which allows for such arrangements with the consent of both the accused and the Crown. The trial was expected to last six months, and the defendant had previously experienced health issues exacerbated by the transport from custody to court.

The court had to decide whether the defendant's health considerations were sufficient grounds to permit him to appear via audio-visual link. Key legal issues included the interpretation of the relevant statutory provisions, the principles surrounding an accused's right to be present at their trial, and the balance between the defendant's rights and the public interest in ensuring a fair trial. The court needed to assess whether the potential exacerbation of the defendant's health issues justified the use of the audio-visual link and whether this would unduly prejudice the fairness of the trial.

After considering the statutory provisions and the precedents, the court concluded that the defendant's health issues, which had been exacerbated by previous court appearances, warranted the use of an audio-visual link. The court found that the defendant's right to a fair trial could be adequately protected while also safeguarding his health. The consent of both the accused and the Crown was present, and the potential for prejudice to the fairness of the trial was deemed manageable. The court thus granted the application, allowing the defendant to appear via audio-visual link for the duration of the trial.

Orders