Roberts v The Queen

[2021] SASCA 140

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ROBERTS v THE QUEEN

[2021] SASCA 140

Judgment of the Honourable President Livesey  (ex tempore)

22 November 2021

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - PROCEDURE

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - PROOF AND EVIDENCE

By interlocutory application dated 15 November 2021, the respondent sought an order that her counsel be permitted to appear at the hearing of this matter on 21 December 2021 via audio visual link (AVL) pursuant to s 59IE of the Evidence Act 1929 (SA) (the Act).

The appellant opposed the application on the basis that “time is not of the essence” and inconvenience may be caused by the granting of the respondent’s application.

Held (per Livesey P), granting the application:

1.There is no suggestion that the appellant will suffer unfairness within s 59IE of the Act if the respondent’s counsel are permitted to appear by AVL.

2.The application is granted and counsel for the respondent have permission to appear via AVL on 21 December 2021.

Evidence Act 1929 (SA), referred to.
Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69, considered.

ROBERTS v THE QUEEN

[2021] SASCA 140

Court of Appeal – Criminal

LIVESEY P:

1. This is an application by the Commonwealth Director of Public Prosecutions (CDPP) that counsel be permitted to appear at the hearing of this matter on 21 December 2021 by audio visual link (AVL). 

2. The CDPP explains that counsel formerly briefed is now embarrassed as a result of a jury trial restarting, which is unlikely to complete before this appeal will be heard.  Counsel is not likely to be available again until April of 2022.  The CDPP has briefed Western Australian counsel who wish to appear via AVL, for reasons that include the proximity to Christmas and continuing uncertainty over COVID‑19 travel arrangements. 

3. The application is opposed by the applicant.

4. Senior counsel for the appellant does not suggest that there will be requisite unfairness to her client within the meaning of s 59IE of the Evidence Act 1929 (SA) (the Act).  She refers to the delay in the prosecution of this matter as well as the fact that her client is in prison for some years on unrelated matters.  Time is not of the essence for her client.  Senior counsel also raises a number of other matters best described as going to convenience.  She says that she is available in February 2022 but she does not seek an adjournment. 

5. I addressed some of the relevant considerations in Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd.[1] At a time when there is very largely a national profession and continuing uncertainty about travel arrangements, it is necessary that the Court be pragmatic regarding applications made under s 59IE of the Act.

   [1]    Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69, [31] (Livesey J): “A degree of common sense and flexibility must be expected from the parties, their lawyers and the Court during this pandemic”.

6. This matter was listed at a regular callover and, were it now to be adjourned, it is uncertain whether it could be relisted before April or May 2022.

7. In my view the application should be granted.  Counsel for the CDPP has permission to appear via AVL on 21 December 2021.