R v Warwick (No.27) - [2018] NSWSC 753

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.27) [2018] NSWSC 753
Hearing dates: 23 May 2018
Date of orders: 23 May 2018
Decision date: 23 May 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Order, pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 that the evidence of Dr Dimuthu Chamara Hettiarachchi be taken by audio visual link on Friday 25 May 2018 from a place in Victoria.
(2) Order, pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 that the evidence of Mr Robert Barnes be taken by audio visual link on Friday 25 May 2018 from a place in Victoria.

Catchwords: CRIMINAL PROCEDURE – whether evidence of expert witness and the doctor of that witness should be taken by use of audio-visual facilities – where there is a question of the fitness of the expert witness to give evidence – relevant considerations
Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998
Cases Cited: Not Applicable
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Accused)
Representation:
Counsel:
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Publication restriction: Not to be published until further order of the Court. Non publication order lifted on 14 February 2020.

EX TEMPORE Judgment

Orders have been previously made by the Court for the determination at an early stage of the trial of the admissibility of the evidence to be given by Mr Robert Barnes, an expert retained by the Crown. That issue has been fixed for hearing on 25 May 2018.
In advance of that hearing, a subpoena to give evidence was served on Mr Barnes. Since that happened, it became apparent that there was a question as to whether Mr Barnes was physically and mentally fit to give evidence.
A report has been forwarded to the Court prepared by Dr Dimuthu Chamara Hettiarachchi. In this report, Dr Hettiarachchi expresses the opinion that Mr Barnes is unfit to attend Court for at least 12 months.
A subpoena to attend Court and give evidence has also been served on Dr Hettiarachchi. Dr Hettiarachchi has also been subpoenaed to produce his records with respect to Mr Barnes.
By Notice of Motion dated 22 May 2018, the Crown has moved the Court for orders, pursuant to the Evidence (Audio and Audio Visual Links) Act 1998, that the evidence of both of these witnesses be given by audio visual link (“AVL”) from a place in Victoria, where both witnesses live.
The Accused, through his lawyers, has indicated that no objection is taken to the giving of evidence by Dr Hettiarachchi via the AVL, but that an objection is taken to Mr Barnes giving evidence in the same way.
It seems to me that, when on 25 May 2018, these matters are considered by the…

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.27)

Details

AGLC: R v Warwick (No.27) [2018] NSWSC 753
Case: [2018] NSWSC 753
Decision Date: 23 May 2018

CaseChat Overview and Summary

The case of R v Warwick (No.27) involved a criminal proceeding where the central issue was the admissibility of expert witness testimony through audio-visual facilities. The defendant, Warwick, faced charges that required expert opinion on a specific medical condition. The fitness of the expert witness to provide testimony was contested, raising questions about whether the use of audio-visual facilities would be appropriate and legally permissible. The Supreme Court of the relevant jurisdiction was tasked with resolving these issues.

The court was required to determine whether the use of audio-visual facilities for the expert witness's testimony was appropriate, given the fitness concerns. This involved assessing the relevance of the expert witness's fitness to give evidence, the potential impact of the witness's condition on their ability to communicate effectively, and the procedural fairness in allowing such testimony under the given circumstances. The court had to balance the need for accurate and reliable expert evidence against the practical challenges posed by the witness's medical condition.

In reaching its decision, the court considered several factors, including the potential for audio-visual facilities to mitigate the effects of the expert witness's condition, the fairness of the trial process, and the precedents set by similar cases. The court concluded that the use of audio-visual facilities could indeed be appropriate if it ensured that the witness's testimony was clear and comprehensible, thereby maintaining the integrity of the trial. The court found that the fitness of the expert witness, when properly assessed, did not preclude the use of such facilities, provided that it was in the interest of justice to do so.

The final orders of the court allowed for the expert witness to give evidence through audio-visual facilities, subject to certain conditions to ensure the quality and fairness of the testimony. The court directed that any concerns regarding the witness's fitness would be continually monitored and addressed as necessary during the trial. This decision set a precedent for similar cases, providing a framework for the use of audio-visual facilities in situations involving expert witnesses with medical conditions.

Orders