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Supreme Court 14 May 2018

R v Jenkin (No 7)

[2018] NSWSC 728

Other
CRIMINAL LAW PROCEDURE WITNESSES EVIDENCE BY AUDIO VISUAL LINK WHERE ACCUSED OPPOSES USE OF TECHNOLOGY INTERESTS OF ADMINISTRATION OF JUSTICE

Citation: R v Jenkin (No 7) [2018] NSWSC 728
Court: Supreme Court of New South Wales
Date: 14 May 2018
Judge: Hamill J

Background

This decision arose in the course of a serious criminal trial in Wollongong. The Crown applied for a direction that a prosecution witness, referred to here by his role as the relevant witness, give evidence via audio visual link from a location in Sydney's western suburbs rather than appearing in person at court.

The accused opposed the application. The Crown had previously attempted to make the application but was told by Hamill J that the supporting evidence was unsatisfactory. The Crown then filed further material, including a letter from a nurse unit manager at a community mental health clinic.

The letter confirmed that the witness was a current patient of the clinic, had been diagnosed with drug-induced psychosis and agoraphobia arising from a history of childhood trauma, and that requiring him to appear in person could contribute to a mental health relapse and a further hospital presentation.

  • Whether the court should make a direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) permitting the witness to give evidence by audio visual link.
  • Whether the Crown had satisfied the court, as required by s 5B(3), that making the direction was in the interests of the administration of justice, given that the accused opposed it.

Decision

Hamill J identified s 5B(3) as the operative provision. That subsection requires that, where a party opposes a direction for evidence by audio visual link, the court must not make the direction unless the applicant satisfies it that doing so is in the interests of the administration of justice. His Honour noted this is a broad test that will vary in its application depending on the circumstances of each case.

The accused raised two matters in opposition. First, the witness had appeared in person at committal proceedings in April 2017. Hamill J gave that limited weight, noting the significant time that had passed since then. Second, the witness had appeared as a defendant in summary criminal proceedings at Parramatta Local Court as recently as 3 May 2018. His Honour acknowledged this was more relevant, though he treated the inference that the witness had actually attended on that date as a reasonable but not certain one.

Hamill J acknowledged the supporting letter was not as detailed or formal as one might have hoped, but noted it was not genuinely challenged. He accepted that the risk to the witness's mental health from attending in person in Wollongong was sufficient to satisfy the statutory test. The direction was made conditionally: if practical difficulties arose, His Honour reserved the power to rescind the direction and require the witness to attend in person.

Orders Made

  • A direction was made under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) that the witness give evidence from a remote location in Sydney's western suburbs via audio visual link.
  • The court reserved the power to rescind the direction if practical difficulties arose.

Key Takeaways

  • Under s 5B(3) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), where a party opposes an audio visual link direction, the onus rests squarely on the applicant to satisfy the court that the direction is in the interests of the administration of justice.
  • The Supreme Court accepted that documented mental health vulnerabilities, including drug-induced psychosis and agoraphobia, can constitute sufficient grounds for a direction to give evidence remotely, even where the supporting evidence is not as detailed as might be ideal.
  • A witness's prior attendance at court proceedings is a relevant factor in assessing an audio visual link application, but significant time elapsed since that attendance reduces its weight.
  • Recent court appearances by the witness in a different capacity, such as appearances as a defendant in summary proceedings, are relevant but not necessarily determinative against the making of a direction.
  • Audio visual link directions made on mental health grounds may be conditional: the court may reserve power to rescind the direction and require in-person attendance if practical difficulties emerge.

Legislation and Cases Referenced

Legislation
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B (and in particular s 5B(2) and s 5B(3))

Cases
No cases were cited in the judgment.