Citation: [2001] NSWCCA 520
Court: NSW Court of Criminal Appeal
Date: 12 December 2001
Judge(s): Greg James J; Bell J
Background
The applicant, who appeared without legal representation, had a criminal appeal listed before the Court of Criminal Appeal on 30 January 2002. The appeal involved a question about the circumstances in which the applicant had entered a plea to an offence in the District Court. The applicant indicated he intended to rely on fresh evidence from two witnesses at the appeal hearing.
The applicant claimed that those potential witnesses had been subjected to harassment after he disclosed their existence. He opposed the Crown's application for a direction requiring advance filing of affidavits, arguing that doing so might expose the witnesses to threats that could cause them to withdraw their evidence.
The Crown applied for a procedural direction requiring the applicant to file and serve affidavits from those witnesses in advance of the hearing, consistent with standard practice, so the Crown could properly understand the case it would need to meet.
Legal Issues
- Whether the court should direct the applicant to file and serve affidavits from proposed fresh evidence witnesses in advance of the appeal hearing
- Whether the applicant's concern about witness harassment provided sufficient reason to depart from the usual practice for adducing fresh evidence on appeal
Decision
Greg James J rejected the applicant's argument that the risk of witness intimidation justified departing from ordinary procedure. The court found that no sufficient reason had been advanced to take a course other than the standard one: filing and serving affidavits before the hearing.
The court also noted that the applicant's own concern about evidence being withdrawn was, paradoxically, addressed by the filing requirement. Once affidavits are filed with the court, evidence is placed on permanent record and may be relied upon even if a witness later changes their account, including in circumstances governed by the Evidence Act 1995. Filing could therefore protect against the very risk the applicant identified.
Bell J agreed with Greg James J, and the direction was made as the orders of the court.
Orders Made
- The applicant, should he wish to rely on fresh evidence, is directed to file and serve affidavits from his witnesses in a timely manner to permit the Crown to know the nature of the case it has to meet, with those affidavits to be provided on or before Monday 21 January 2002.
Key Takeaways
- The Court of Criminal Appeal confirmed that the standard procedure for fresh evidence on appeal requires affidavits to be filed and served in advance, so the Crown has proper notice of the case it must meet.
- Concern about potential witness harassment did not constitute a sufficient reason to depart from the ordinary practice of filing affidavits before the hearing.
- Once affidavits are filed with the court, the evidence assumes a permanent form and cannot simply be "withdrawn," including in circumstances where the Evidence Act 1995 permits prior statements to be used if a witness later changes their account.
- The court treated this as a straightforward procedural matter, with no basis established for special or exceptional treatment of the fresh evidence application.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
Cases:
- No cases were cited in this decision.