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Supreme Court 3 December 2020

R v Dougas; R v Read; R v Linke; R v Casamento; R v Counihan

[2020] NSWSC 1731

Fraud & dishonesty
19 PANDEMIC SPECIAL PROVISIONS

Citation: R v Dougas; R v Read; R v Linke; R v Casamento; R v Counihan [2020] NSWSC 1731
Court: Supreme Court of New South Wales
Date: 3 December 2020
Judge(s): Adamson J

Background

Five accused persons faced an indictment charging two counts of conspiracy to bribe a foreign public official, contrary to the Criminal Code Act 1995 (Cth). The alleged conspiracies concerned corrupt payments intended to influence foreign officials in the Philippines and Vietnam, and were said to have occurred over separate periods between 2000 and 2012. A related corporate entity, formerly known as Sinclair Knight Merz Pty Ltd, had already pleaded guilty in the Local Court and awaited sentencing by the Supreme Court.

At the first mention of the matter on 9 November 2020, the question arose whether arraignment, which was listed for 9 December 2020, could proceed by audio visual link (AVL) for accused persons located outside New South Wales. Three accused were in Melbourne, one was in London, and one was in a New South Wales location. The Court directed the parties to provide written submissions on whether it had the power to conduct that arraignment remotely across state and international boundaries.

  • Whether the Supreme Court of New South Wales has the power to arraign accused persons by AVL when those persons are located outside New South Wales, including outside Australia.
  • Which provisions of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (the AVL Act) applied to the arraignment in this context.
  • Whether the COVID-19 special provisions in s 22C of the AVL Act permitted the arraignment to proceed in the circumstances, and what consents or directions were required.

Decision

Adamson J examined the relevant provisions of the Criminal Procedure Act 1986 (NSW) and the AVL Act to determine whether arraignment by AVL from interstate and overseas locations was lawful. Her Honour confirmed that arraignment falls within the definition of "physical appearance proceedings" in s 3 of the AVL Act, because it is an arraignment held on the day appointed for trial, or is part of the trial proceedings under s 130 of the Criminal Procedure Act.

Section 22C of the AVL Act, which was inserted in response to the COVID-19 pandemic, expressly provides for accused persons to appear by AVL in physical appearance proceedings if the court so directs. Any potential ambiguity about territorial reach was resolved by s 22C(7A), which expressly states that an appearance by AVL may take place from a location within or outside New South Wales, including a place outside Australia, where the court directs or the parties consent.

None of the accused were detainees: bail had been dispensed with for most, and one had been granted bail. This meant s 22C(2A) applied, entitling each accused to appear by AVL if the Court directed or the parties consented. Following the direction for written submissions, all parties formalised their positions. The Crown confirmed it would apply for a direction if necessary, and each accused either applied for a direction or expressly consented to arraignment by AVL. On 2 December 2020, each party formally confirmed consent, and Adamson J was satisfied the arraignment could proceed remotely.

Orders Made

  • The Crown and each accused person consented, pursuant to s 22C(2A) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), to each accused appearing by audio visual link for the arraignment listed on 9 December 2020 and, subject to further order, for any subsequent appearances up to and including 26 March 2021.

Key Takeaways

  • Section 22C(7A) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) expressly permits an accused person to appear by AVL from a location outside New South Wales, including a place outside Australia, where the court directs or the parties consent.
  • Arraignment constitutes "physical appearance proceedings" within the meaning of s 3 of the AVL Act, bringing it within the scope of the COVID-19 special provisions in s 22C.
  • Where an accused is not a detainee, s 22C(2A) governs appearances in proceedings that are not physical appearance proceedings, while s 22C(3) applies to physical appearance proceedings such as arraignment: the sections operate distinctly depending on the nature of the proceedings.
  • Party consent is a valid basis on which an arraignment by AVL may proceed under the COVID-19 special provisions, without the court needing to issue a direction of its own motion.
  • The decision illustrates how pandemic-era legislative amendments expanded the territorial reach of AVL provisions to accommodate accused persons located outside the jurisdiction.

Legislation and Cases Referenced

Legislation
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 3, 3A, 22C
- Evidence (Audio and Audio Visual Links) Regulation 2015 (NSW), reg 4B
- Criminal Procedure Act 1986 (NSW), ss 97, 102, 130, 154
- Bail Act 2013 (NSW), s 13
- Criminal Code Act 1995 (Cth), ss 11.5, 70.2
- Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 (NSW), sch 1

Cases
- Regina v Michael Taylor [2003] NSWCCA 194
- Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46
- JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320; [2014] NSWCA 228
- KS v Veitch [2012] NSWCCA 186