R v Warwick (No.51) - [2018] NSWSC 1555

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.51) [2018] NSWSC 1555
Hearing dates: 04 October 2018
Date of orders: 04 October 2018
Decision date: 04 October 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Pursuant to s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998, I order that Robert Barnes is to give evidence by audio-visual link from a place in Victoria.
(2) Order that the giving of evidence of Mr Barnes is not to commence before 15 October 2018.
(3) Subject to any further order, the giving of evidence by Mr Barnes is not to continue past 29 October 2018.

Catchwords: CRIMINAL PROCEDURE – whether evidence of Crown witness should be taken by use of audio-visual facilities – evidence of psychiatric conditions suffered by witness – fitness of the expert witness to give evidence likely to be detrimentally affected if he was required to attend court in person – consideration of practical and technological limitations – ability of court to assess credibility – order made under Evidence (Audio and Audio Visual Links) Act 1998, s 5B(1)
Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998
Cases Cited: R v Warwick (No.27) [2018] NSWSC 753
Texts Cited: Not Applicable
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 applicable

EX TEMPORE Judgment (T.3559)

Notice of Motion

This is an application by the Crown, made by Notice of Motion filed in Court on 13 September 2018, for an order that:

"Pursuant to s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998, an order be made that Robert Barnes give evidence by audio-visual link from a place in Victoria".

The application is opposed by the Accused.

Legislation

Section 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (“AVL Act”) empowers a court, either on its own motion, or on the application of a party to a proceeding, to give a direction that a person, including a witness, give evidence by audio-visual link (“AVL”) from any place within or outside New South Wales (including a place outside Australia) other than the courtroom in which the Court is sitting.
Section s 5B(2) of the AVL Act limits the power of the Court to make such a direction. It is in the following form:

“(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…

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.51)

Details

AGLC: R v Warwick (No.51) [2018] NSWSC 1555
Case: [2018] NSWSC 1555
Decision Date: 04 October 2018

CaseChat Overview and Summary

The matter of R v Warwick (No. 51) arose before the court, where the defendant was charged with a serious criminal offence. The central dispute concerned the manner in which evidence from a Crown witness, who suffered from psychiatric conditions, should be presented to the court. The defendant sought to have the witness's evidence given via audio-visual facilities to avoid potentially detrimental effects on the witness's fitness to testify in person. The court was tasked with determining whether such a method of evidence presentation was permissible under the Evidence (Audio and Audio Visual Links) Act 1998.

The court had to decide whether the use of audio-visual facilities for the witness's testimony complied with statutory requirements and was appropriate given the circumstances. This involved considering the potential impact of the witness's psychiatric conditions on their ability to give evidence in person and the implications for the witness's fitness to testify. Additionally, the court examined the technological and practical constraints of using audio-visual links, ensuring that the court could still effectively assess the credibility and reliability of the witness's evidence.

In its reasoning, the court concluded that the evidence of the Crown witness should indeed be taken via audio-visual facilities to prevent any adverse impact on the witness's fitness to give evidence. The court acknowledged the witness's psychiatric conditions and the expert evidence presented regarding the potential detrimental effects of in-person attendance. The court also noted the technological capabilities available to facilitate a credible and reliable presentation of evidence. Pursuant to the Evidence (Audio and Audio Visual Links) Act 1998, s 5B(1), the court made an order allowing the witness to give evidence through audio-visual facilities.

The court's decision resulted in an order that the Crown witness would provide their evidence via audio-visual facilities, thereby accommodating the witness's psychiatric conditions while ensuring the integrity of the trial process. This ruling balanced the need to protect the witness's well-being with the necessity of obtaining credible and reliable evidence in the case.

Orders