Re SZW - [2025] QSC 195

SUPREME COURT OF QUEENSLAND

CITATION:

Re SZW [2025] QSC 195

PARTIES:

SZW

(Applicant)
v
THE KING
(First Respondent)

And

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

(Second Respondent)

FILE NO:

BS 577 of 2025

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

20 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2025

JUDGE:

Bowskill CJ

ORDERS:

Pursuant to s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth), the Court will issue a certificate, in a form to be confirmed with the parties, stating that it is in the interests of justice for the Attorney-General of the Commonwealth of Australia to make a request on behalf of the applicant to India under Part II of the Mutual Assistance in Criminal Matters Act 1987 for assistance to arrange for the applicant’s brother to give evidence from India, through a video-link from Australia, in the trial of the charges against the applicant in the District Court of Queensland.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – MUTUAL ASSISTANCE IN CRIMINAL MATTERS – whether it would be in the interests of justice for the Attorney-General of the Commonwealth of Australia to make a request that a person’s evidence be taken in India, by video-link from Australia, pursuant to s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth)

COUNSEL:
C Hurley for the applicant
M Gawrych for the first respondent
K Boomer for the second respondent

SOLICITORS:
JS Legal Law Practice for the applicant
Office of the Director of Public Prosecutions for the first respondent

Office of the Attorney-General of the Commonwealth of Australia for the second respondent

The applicant is charged with domestic violence offences which include strangulation and assault of his wife. The trial is scheduled to commence in the District Court on 24 November 2025. The applicant’s parents and brother live in India. The Crown proposes to call the applicant’s parents as witnesses in the Crown’s case. They are elderly, unwell and unable to travel to Brisbane for the trial. The applicant wishes to call evidence from his brother as part of the defence case. The brother cares for his elderly parents, and so it is difficult for him to travel to Brisbane for the trial.
There is no objection in principle to any of these witnesses giving evidence by audio-visual link at the trial. But there is an international law impediment. The Court is informed that India will not permit any Indian citizen within its territory to give evidence in Australian criminal proceedings without a formal request for assistance. Under s 10(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth) (Act), that formal request must be made by the Commonwealth Attorney-General.[1]
[1]The request is also governed by the Treaty between Australia and the Republic of India on Mutual Legal Assistance in Criminal Matters, set out in schedule 1 to the Mutual Assistance in Criminal Matters (India) Regulations 2010 (Cth).
At the behest of the prosecutor, the Attorney-General has made a formal request to 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 Re SZW

Details

AGLC: Re SZW [2025] QSC 195
Case: [2025] QSC 195
Decision Date: 20 August 2025

CaseChat Overview and Summary

The case of Re SZW involved the application of the applicant, who sought a certificate from the court to facilitate the evidence of his brother from India through a video-link in his criminal trial in Queensland. The court was required to determine whether such a request was in the interests of justice under section 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth). The applicant argued that the evidence of his brother was crucial for his defence, and that the witness's presence in India made it impractical for him to attend the trial in person. The Commonwealth opposed the application, contending that the request was not in the interests of justice and would unduly delay the proceedings.

The court considered the criteria for issuing a certificate under section 39A(1) of the Act, which include the relevance and admissibility of the evidence, the necessity of the witness's attendance, and the potential for undue delay or expense. The court found that the evidence of the applicant's brother was indeed relevant and potentially admissible, and that the witness's absence from Australia made it necessary for him to give evidence by video-link. The court also accepted that the applicant's defence would be significantly prejudiced without the witness's testimony, and that the potential delay and expense were not disproportionate to the importance of the evidence.

Given these findings, the court concluded that issuing the certificate was in the interests of justice. The court recognised the importance of the evidence and the practical challenges of obtaining it otherwise, and was satisfied that the balance of factors supported the application. The court was mindful of the need to ensure that the rights of all parties were protected, but ultimately found that the benefits of allowing the evidence outweighed any potential drawbacks. The court therefore determined to issue the certificate, subject to confirmation of its form with the parties.

In its final orders, the court issued a certificate pursuant to section 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth). The certificate authorised the Attorney-General of the Commonwealth of Australia to request that the applicant's brother give evidence from India through a video-link from Australia, in the trial of the charges against the applicant in the District Court of Queensland. The form of the certificate was to be confirmed with the parties, allowing for any necessary adjustments to ensure its accuracy and compliance with the Act. This decision provided the applicant with the opportunity to present a key aspect of his defence, while also upholding the principles of justice and the proper administration of the law.

Orders

Orders of the court

Pursuant to s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth), the Court will issue a certificate, in a form to be confirmed with the parties, stating that it is in the interests of justice for the Attorney-General of the Commonwealth of Australia to make a request on behalf of the applicant to India under Part II of the Mutual Assistance in Criminal Matters Act 1987 for assistance to arrange for the applicant’s brother to give evidence from India, through a video-link from Australia, in the trial of the charges against the applicant in the District Court of Queensland.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re SZW [2025] QSC 195
PARTIES:	SZW (Applicant) v THE KING (First Respondent) And ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA (Second Respondent)
FILE NO:	BS 577 of 2025
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	20 August 2025
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2025
JUDGE:	Bowskill CJ
ORDERS:	Pursuant to s 39A(1) of the *Mutual Assistance in Criminal Matters Act 1987* (Cth), the Court will issue a certificate, in a form to be confirmed with the parties, stating that it is in the interests of justice for the Attorney-General of the Commonwealth of Australia to make a request on behalf of the applicant to India under Part II of the *Mutual Assistance in Criminal Matters Act 1987* for assistance to arrange for the applicant’s brother to give evidence from India, through a video-link from Australia, in the trial of the charges against the applicant in the District Court of Queensland.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – MUTUAL ASSISTANCE IN CRIMINAL MATTERS – whether it would be in the interests of justice for the Attorney-General of the Commonwealth of Australia to make a request that a person’s evidence be taken in India, by video-link from Australia, pursuant to s 39A(1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth)
COUNSEL:	C Hurley for the applicant M Gawrych for the first respondent K Boomer for the second respondent
SOLICITORS:	JS Legal Law Practice for the applicant Office of the Director of Public Prosecutions for the first respondent Office of the Attorney-General of the Commonwealth of Australia for the second respondent