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Supreme Court 1 October 2020

R v Ryan (No 2)

[2020] NSWSC 1420

Homicide
CRIMINAL LAW EVIDENCE PUBLIC HEALTH EMERGENCY CONSIDERATIONS WITNESS IN HIGH RISK CATEGORY

Citation: R v Ryan (No 2) [2020] NSWSC 1420
Court: Supreme Court of New South Wales
Date: 1 October 2020
Judge: Button J

Background

The accused stood trial for homicide. The homicide itself was not in dispute; the central question was whether the appropriate verdict was murder or manslaughter, with a further issue concerning the nature and substantiality of any impairment under s 23A(6) of the Crimes Act 1900 (NSW).

The prosecution sought to call the deceased's sister, an elderly woman residing in Menindee in far-western New South Wales, while the trial was being conducted in the far north of the State. The witness was in her late sixties, had a pre-existing heart condition including a recent heart attack, and was the primary carer for her unwell elderly husband, who had already given evidence by AVL the previous day.

Both parties consented to the witness giving her evidence by audio visual link (AVL) rather than travelling to the courtroom in person. Button J was required to satisfy himself that such an arrangement was in the interests of justice before making the order.

  • Whether it was in the interests of justice to permit the witness to give evidence by AVL under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), particularly ss 5B and 22C(4)
  • Whether the existence of cross-examination on disputed background matters (specifically, the witness's observations of the relationship between the accused and the deceased) should preclude a remote appearance
  • What weight to give to the consent of both parties, including experienced defence counsel, in making that assessment

Decision

Button J acknowledged his general reservations about witnesses giving evidence by AVL where their credit is in dispute, noting that assessing demeanour via remote link has historically been difficult. However, he identified six factors that collectively satisfied him that a remote appearance was in the interests of justice in this case.

First, Australia was in the midst of a public health emergency. Travel to the trial location would have required the witness to fly through multiple airports, creating meaningful exposure risk. That risk was compounded by the witness's own health vulnerability: her age, heart condition, and recent heart attack placed her squarely in a high-risk category for COVID-19.

Second, the witness's role as carer for her husband created additional logistical problems if she were to travel for an extended period. Third, Button J accepted that AVL technology had improved markedly and was no longer the unreliable tool it once was. His Honour drew on his direct experience in this trial and two other judge-alone trials conducted that year, all of which involved uniformly excellent picture and sound quality.

Fourth, while the witness's evidence was important (casting light on the relationship between the accused and the deceased), it was not the kind of pivotal evidence, such as identification or informer evidence, that demands particularly close in-person demeanour assessment. Finally, Button J gave significant weight to the fact that the application was made entirely by consent, including by experienced defence counsel who had clearly considered the position carefully.

Orders Made

  • The witness was permitted to give evidence remotely by AVL from Menindee in far-western New South Wales.

Key Takeaways

  • The Supreme Court confirmed that the interests of justice test under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) is a flexible, multi-factorial assessment that can accommodate contested evidence without necessarily requiring in-person appearance.
  • A witness's membership of a COVID-19 high-risk category, combined with the travel burden of reaching a remote trial venue, constitutes a compelling factor favouring an AVL order.
  • The nature of the disputed evidence matters: evidence about background or relationship context sits in a different category from identification evidence or evidence from an informer, where close demeanour assessment is especially important.
  • Advances in AVL technology are a legitimate consideration; Button J noted that technical quality during the pandemic period had been consistently high across multiple trials, reducing the historical concern about impaired demeanour assessment.
  • Consent by both parties, particularly where defence counsel is experienced and has clearly taken an advised position, carries significant weight in the interests of justice analysis, though it does not displace the court's independent obligation to be satisfied.

Legislation and Cases Referenced

Legislation:
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5B, 22C(4)
- Crimes Act 1900 (NSW), s 23A(6)

Cases cited: None cited in the judgment.