R v Youseff (No 3) - [2024] NSWSC 1261

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
Derbas v R [2007] NSWCCA 118
Jarvie v The Magistrates' Court of Victoria [1995] 1 VR 84
KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249
McNamara v The King [2023] HCA 36
R v AS [2023] NSWSC 885
R v Sigalla [2016] NSWSC 1178
R v Wilkie [2005] NSWSC 794

Texts Cited:
Nil

Category: Procedural rulings
Parties: Rex (Crown)
Bahra Youseff (Accused)
Representation:
Counsel:
S Sloane (Crown)
J Stratton SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Just Defence Lawyers (Accused)

File Number(s): 2022/259263
Publication restriction: Nil

JUDGMENT

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.
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.
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

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.
On 30 November 2020 at approximately 2:35am, the deceased, Adnan Salameh, was…

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 Youseff (No 3)

Details

AGLC: R v Youseff (No 3) [2024] NSWSC 1261
Case: [2024] NSWSC 1261
Decision Date: 08 October 2024

CaseChat Overview and Summary

In this case, the appellant, Youseff, appealed against his conviction for drug-related offences, specifically the supply of a commercial quantity of a controlled drug. The appeal centred on the evidence provided by a witness who gave her testimony via an audio-visual link from Queensland due to her recent childbirth. The case was heard in the Supreme Court of Victoria.

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