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Supreme Court 3 November 2006

R v Potter

[2006] NSWSC 1174

Homicide
CRIMINAL LAW VISUAL LINK

Citation: R v Potter [2006] NSWSC 1174
Court: Supreme Court of New South Wales
Date: 3 November 2006
Judge(s): Johnson J

Background

The applicant was serving a life sentence imposed in 1988 following a guilty plea to murder. He applied to the Supreme Court under the Crimes (Sentencing Procedure) Act 1999 for a redetermination of that sentence, seeking the substitution of a fixed head sentence and non-parole period.

Due to an administrative error, the production order requiring the applicant's physical attendance at court had been issued for 1 December 2006 rather than 3 November 2006, the listed hearing date. The applicant remained detained at Junee Correctional Centre. Arrangements were made at short notice for the hearing to proceed, at least initially, via audio-visual link.

The applicant appeared by video link, was unrepresented, and indicated he wished the matter to proceed that day. The Crown initially indicated conditional consent but later withdrew it, raising concerns about the complexity of the proceedings and the applicant's unrepresented status.

  • Whether the court should direct, under s 5BB of the Evidence (Audio and Audio Visual Links) Act 1998, that the redetermination application proceed by audio-visual link in the absence of the Crown's consent
  • Whether proceeding by audio-visual link would be in the interests of the administration of justice, given the applicant was unrepresented and proposed to give evidence subject to cross-examination

Decision

Johnson J identified the default position under s 5BB(1) of the Evidence (Audio and Audio Visual Links) Act 1998: where the applicant is detained within New South Wales, the hearing cannot proceed by audio-visual link unless both parties consent, or the court directs otherwise. Section 5BB(2) allows consent to override that default, but once the Crown withdrew its consent, that avenue was closed.

The court could still give a direction under s 5BB(4) permitting the link to proceed, but only if satisfied that doing so would be in the interests of the administration of justice. Johnson J identified two factors weighing firmly against such a direction. First, the applicant was unrepresented in a proceeding where the Crown not only opposed the redetermination but would seek an order preventing any further application for 10 years. That combination made unrepresented participation particularly problematic. Second, the applicant proposed to give evidence and face cross-examination, including on documents, and the practical difficulties of document-based cross-examination by video link are well established.

Johnson J acknowledged the burden placed on those who had prepared themselves for the hearing, including the victim's family. Nonetheless, his Honour concluded that even if the hearing commenced by video link, it would almost inevitably be adjourned before completion. Proceeding would therefore waste time and cause further distress, rather than serve the interests of justice.

The court declined to give the direction and adjourned the application to 1 December 2006, when the applicant was to be produced physically in Sydney. Johnson J also noted that representation by a Public Defender and Senior Counsel is the near-universal practice on applications of this kind, and recommended that the applicant reconsider his position on representation in the intervening period.

Orders Made

  • Application to proceed by audio-visual link declined
  • Application adjourned for hearing in Sydney on 1 December 2006 at 10:00 am
  • Existing production order under s 77 of the Crimes (Administration of Sentences) Act 1999 (requiring the applicant's physical attendance on 1 December 2006) confirmed to remain in place
  • Crown directed to contact the Prisoners' Legal Service to communicate the adjournment and the court's recommendation regarding representation

Key Takeaways

  • Under s 5BB of the Evidence (Audio and Audio Visual Links) Act 1998, an accused detainee held within New South Wales must appear physically unless both parties consent or the court directs otherwise in the interests of the administration of justice.
  • A life sentence redetermination application is a form of sentencing proceeding, and the general law expects the prisoner to be present, subject only to rare exceptions drawn from cases such as R v McHardie (1983) 2 NSWLR 733.
  • The court found that an unrepresented applicant facing both a contested redetermination and a potential 10-year bar on re-application presented a significant consideration against allowing the matter to proceed by audio-visual link.
  • Practical difficulties with document-based cross-examination by video link, recognised in ASIC v Rich (2004) 49 ASCR 578 and addressed procedurally by s 20E of the Evidence (Audio and Audio Visual Links) Act 1998, weighed against conducting the hearing remotely.
  • Representation by a Public Defender and Senior Counsel instructed by the Legal Aid Commission is described as the near-invariable practice in life sentence redetermination applications, given the serious and specialised nature of such proceedings.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(5)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 77
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 3, 5BB, 20E

Cases
- Australian Securities and Investment Commission v Rich (2004) 49 ASCR 578
- R v McHardie (1983) 2 NSWLR 733
- R v Mokbel [2006] VSC 119