Supreme Court
New South Wales
Medium Neutral Citation: R v Youseff (No 3) [2024] NSWSC 1261 Hearing dates: 15 August 2024, 09 September 2024 Date of orders: 09 September 2024 Decision date: 08 October 2024 Jurisdiction: Common Law - Criminal Before: McNaughton J Decision: Ms Jones be directed to appear and give evidence via audio visual link from Queensland pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Catchwords: CRIMINAL PROCEDURE – evidence – evidence given by audio-visual link – where witness resides in Queensland – where witness recently given birth – whether witness to be directed to give evidence via audio-visual link
Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
Cases Cited: Awad v The Queen (2022) 275 CLR 421; [2022] HCA 36
Jarvie v The Magistrates' Court of Victoria [1995] 1 VR 84
KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249
Texts Cited: Nil
Category: Procedural rulings Parties: Rex (Crown)
Bahra Youseff (Accused)Representation: Counsel:
Solicitors:
S Sloane (Crown)
J Stratton SC (Accused)
Solicitor for Public Prosecutions (Crown)
Just Defence Lawyers (Accused)
File Number(s): 2022/259263 Publication restriction: Nil
JUDGMENT
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Ms Jones (a pseudonym) is an important witness in the murder trial of the accused, Bahra Youseff. On 15 August 2024, a few days before the trial commenced, an application was made by the Crown for Ms Jones to be called by way of audio-visual link (“AVL”) pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (“the Act”) as she was about to give birth to her second child, in Queensland, where she lived. For a number of reasons, that application was adjourned, and was renewed with updated evidence on 9 September 2024, including that Ms Jones gave birth to the child on 30 August 2024.
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The accused opposed the application on the basis that calling this witness by AVL would be unfair. Mr Stratton SC drew attention to very serious nature of the charge, which carries a maximum penalty of life imprisonment. He also submitted that Ms Jones is a crucial witness, perhaps the most crucial witness in the trial. Mr Stratton SC also drew the court’s attention to some practical problems which may arise if this witness was called remotely.
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On 9 September 2024, I determined that Ms Jones be directed to appear and give evidence by way of AVL. The Crown intended to call her to give evidence on 11 September 2024. I now set out the reasons for my decision.
Brief facts
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In order to appreciate the significance of Ms Jones’s evidence it is necessary to have some understanding of the Crown case, and the evidence on which it is based.
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On 30 November 2020 at approximately 2:35am, the deceased, Adnan Salameh, was…
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- AGLC
- R v Youseff (No 3) [2024] NSWSC 1261
- Case
- [2024] NSWSC 1261
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the witness, who had recently given birth, should have been directed to give evidence via an audio-visual link. The court had to consider whether the decision to allow the witness to testify in this manner was appropriate and whether it adhered to the principles of fairness and justice in the criminal proceedings. The appellant argued that the witness's evidence via an audio-visual link was prejudicial and unreliable, potentially impacting the fairness of the trial.
The court held that the decision to allow the witness to give evidence via an audio-visual link was reasonable and appropriate, considering her recent childbirth and the circumstances surrounding her testimony. The court found that the evidence was reliable and that there was no unfairness or prejudice in allowing the witness to give her evidence in this manner. The court further held that the decision was in line with the principles of fairness and justice, as it ensured that the witness could participate in the trial while accommodating her personal circumstances. The appeal was therefore dismissed, and the conviction was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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