Citation: R v Briggs (No 6) [2014] NSWSC 855
Court: Supreme Court of New South Wales
Date: 12 June 2014
Judge(s): Button J
Background
This decision arose during a criminal trial in the Supreme Court. Two days before this judgment, on 10 June 2014, Button J had made an order requiring a forensic pathologist engaged as an expert witness to give evidence in person rather than by audio visual link.
That earlier order was itself an exception to the statutory default position. Under s 5BAA(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), a "government agency witness" (a category that includes certain expert witnesses such as pathologists employed by government agencies) is ordinarily required to give evidence by audio visual link rather than appearing in court.
The earlier direction had been made because the parties anticipated some dispute about the pathologist's evidence, and because defence counsel intended to have the witness physically examine two items retrieved from the alleged crime scene while in the witness box.
Legal Issues
- Whether the order of 10 June 2014 requiring the pathologist to give evidence in person should be revoked in light of changed circumstances.
- Whether the matter should revert to the default position under s 5BAA(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), requiring the witness to give evidence by audio visual link.
Decision
Button J found that the two specific circumstances that had justified the original in-person direction no longer applied. Defence counsel had since conferred directly with the pathologist, and it became apparent that her evidence would attract little or no contention at trial. The anticipated dispute that had supported departing from the statutory default had effectively dissolved.
The logistical concern was also resolved. During the pre-trial conference, the pathologist had the opportunity to examine the two physical items in person. She would therefore be able to give evidence about those items even if appearing remotely by audio visual link.
Both parties jointly applied to revoke the earlier direction. Button J accepted that the joint application was appropriate in all the circumstances, and revoked the order so that the matter reverted to the statutory default under s 5BAA(1).
Orders Made
- The direction of 10 June 2014 requiring the pathologist Dr Vuletic to give evidence in the witness box in person was revoked.
Key Takeaways
- Under s 5BAA(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), government agency witnesses are required to give evidence by audio visual link as the default position; any departure from that default requires specific justification.
- A direction requiring in-person evidence in place of audio visual link testimony is tied to the circumstances that justified it, and may be revoked when those circumstances change.
- The Supreme Court treated the resolution of anticipated evidentiary contention, and the completion of a physical examination of exhibits before trial, as sufficient grounds to return to the statutory default.
- In revoking the earlier order, the court accepted a joint application from both parties, indicating that the agreement of all parties is a relevant consideration, though the court retained the responsibility to assess whether revocation was appropriate.
- No principle was established that in-person examination of physical exhibits always requires attendance in court; in this instance, pre-trial examination of the items satisfied that concern.
Legislation and Cases Referenced
Legislation:
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5BAA
Cases cited: None stated in the judgment.