AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 7 May 2018

R v Jenkin (No 3)

[2018] NSWSC 687

Other
CRIMINAL LAW PROCEDURE WITNESSES EVIDENCE BY WAY OF AUDIO VISUAL LINK WHERE ACCUSED OPPOSES USE OF TECHNOLOGY RIGHT TO CONFRONT ACCUSERS

Citation: R v Jenkin (No 3) [2018] NSWSC 687
Court: Supreme Court of New South Wales
Date: 7 May 2018
Judge(s): Hamill J

Background

The accused, Mr Jenkin, was facing a criminal trial in Wollongong in connection with the death of a man named Mr Dower, who died in or near the accused's flat. The Crown sought to call a witness, Ms Serisier, whose evidence concerned her observations of Mr Dower in the days leading up to his death.

The Crown applied for Ms Serisier to give her evidence by audio visual link rather than in person. The witness was located approximately five to six hours' drive from the Wollongong Court, and the Crown submitted that both the distance and the witness's preference to give evidence remotely supported the application.

The accused opposed the application. His counsel argued that the witness's evidence would be disputed, that she was significant to the defence case (potentially supporting a claim that the accused was helping Mr Dower detox from alcohol), and that she would be shown a large number of photographs during her testimony.

  • Whether the Crown had satisfied the statutory threshold under s 5B(3) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), namely that it was in the interests of the administration of justice to permit evidence by audio visual link
  • Whether the distance of the witness from the court and her preference to give evidence remotely were sufficient grounds to displace the accused's right to have witnesses give evidence in the courtroom

Decision

Hamill J resolved the application primarily by reference to the onus of proof under s 5B(3). That provision places the burden squarely on the party seeking to use the audio visual link to demonstrate that doing so is in the interests of the administration of justice. The Crown had not led any evidence to establish that Ms Serisier was unable to travel to Wollongong.

His Honour acknowledged the long-standing legal principle that an accused person is entitled to have witnesses give evidence in the courtroom, describing this as a form of "confrontation" that extends beyond the primary Crown witness. The court noted this principle remained relevant even where the witness was not the central accuser.

Hamill J also noted the court's own "unhappy experience" with courtroom technology, acknowledging this as a practical consideration alongside the anticipated need to show the witness a large number of photographs during her testimony. However, the decision turned on the absence of evidence justifying departure from the default position.

In the absence of any evidence that attendance in person was impracticable or would cause undue difficulty, the court was not satisfied that the interests of the administration of justice favoured a direction under s 5B(3), and the Crown's application was refused.

Orders Made

No orders were made in this decision. The Crown's application for a direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 was refused.

Key Takeaways

  • Under s 5B(3) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the onus rests on the party seeking to use an audio visual link to satisfy the court that doing so is in the interests of the administration of justice when the opposing party objects.
  • Distance from the court and a witness's personal preference to testify remotely, without more, were insufficient to discharge that onus where no evidence was led that attendance in person was impracticable.
  • A long-standing principle in criminal law holds that an accused person is entitled to have witnesses give evidence physically in the courtroom; this entitlement is not confined to a witness who directly accuses the defendant of the offence.
  • Hamill J's remarks about the court's "unhappy experience" with technology signal that practical difficulties with audio visual systems remain a relevant, if not determinative, consideration in such applications.
  • The case confirms that a bare assertion of distance and witness preference, unaccompanied by evidence of inability to travel, will not satisfy the threshold in s 5B(3).

Legislation and Cases Referenced

Legislation:
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5B(2), 5B(3)

Cases cited: No cases were cited in the judgment.