Citation: R v Sloan (No. 1) [2022] NSWDC 492
Court: District Court of New South Wales
Date: 19 October 2022
Judge(s): Bennett SC DCJ
Background
The accused faced a six-count indictment arising from an evolving relationship with the complainant, whom he had met as a cellmate while both were in custody. The charges spanned conduct between October 2020 and September 2022, beginning with stalking, unlawful detention, and use of an offensive weapon, and progressing to three counts of threatening a witness and perverting the course of justice, all allegedly committed while the accused was in custody awaiting trial.
The Crown sought to amend the original five-count indictment to add a sixth count based on intercepted telephone conversations recorded shortly before trial. The Crown also applied to have two key witnesses, the complainant and his partner, give evidence by audio visual link from a remote location due to the fears each held for their personal safety.
Two procedural contests arose before trial commenced. The Crown sought orders permitting remote evidence and leave to rely on tendency evidence from the intercepted calls. The accused opposed both applications and separately applied to sever counts four, five, and six from the remaining counts, arguing that trying all six charges together would cause irreparable prejudice.
Legal Issues
- Whether the complainant could give evidence by audio visual link from a location remote from the courtroom, under the Evidence (Audio and Audio Visual Links) Act 1998
- Whether the complainant's partner could likewise give evidence by audio visual link from a remote location
- Whether the Crown could rely on tendency evidence under s 97 of the Evidence Act 1995 (the judgment references the Evidence Act 1985, though this appears to be a reference to the applicable Act)
- Whether counts four, five, and six should be severed from counts one, two, and three under s 21 of the Criminal Procedure Act 1986
Decision
Audio Visual Link Applications
The court accepted that both the complainant and his partner held genuine fears for their safety and that of their families if required to give evidence in the physical presence of the accused. On that basis, his Honour granted the Crown's application for both witnesses to give evidence by audio visual link from a location within New South Wales but remote from the courthouse.
Severance Application
The accused argued that counts four, five, and six were sufficiently distinct in character and timing from the original three counts to warrant a separate trial. In particular, the accused pointed to potential prejudice arising from evidence that he was in custody at the relevant times, the contested authorship of writings on a cell wall underpinning counts four and five, and the risk that the jury would be irreparably prejudiced by the telephone conversations forming count six.
The court rejected those arguments. Bennett SC DCJ found that the evidence underlying each group of counts would likely be admissible in the prosecution of the other group, at least as context for the evolving relationship between the accused and the complainant. The conduct alleged across all six counts formed part of a continuous sequence of events, from the formation of the relationship in custody through to the complainant's decision to withdraw and the accused's alleged responses to that withdrawal.
His Honour acknowledged the real difficulty that the jury would necessarily learn the accused was in custody, but expressed confidence that clear and unambiguous directions to the jury would be sufficient to address any resulting prejudice. The application to sever was refused. The tendency evidence question and an application to exclude evidence of a pistol found at the accused's home were reserved for further argument.
Orders Made
- The evidence of the complainant and his partner may each be adduced by audio visual link from a place within New South Wales remote from the court complex in which the trial is to be conducted.
- The accused's application to sever counts four, five, and six from the indictment was refused.
Key Takeaways
- The District Court confirmed that genuine and reasonable fear for personal safety can ground an order permitting a witness to give evidence by audio visual link under the Evidence (Audio and Audio Visual Links) Act 1998, even in a serious criminal trial.
- Where charges on a single indictment arise from a continuous course of conduct involving the same parties, a court may decline severance on the basis that evidence across the separate groups of counts would be mutually admissible at minimum as contextual evidence.
- Under s 21 of the Criminal Procedure Act 1986, a court retains discretion to order separate trials where an accused may be prejudiced by being tried on multiple counts together, but that discretion is not exercised merely because the accused will be exposed as having been in custody.
- Jury directions were treated as a sufficient safeguard against the prejudice of the jury learning the accused was remanded in custody, with the court expressing confidence in juries' capacity to follow such directions.
- The decision left unresolved two further matters: the tendency evidence application under s 97 of the Evidence Act, and the admissibility of a pistol found at the accused's home that the Crown conceded could not be proved to be the weapon alleged in count three.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 86(1)(b), 33B(1)(a), 319, 322(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Procedure Act 1986 (NSW), ss 21, 29
- Evidence Act 1995 (NSW), s 97
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Firearms Act 1996 (NSW)
Cases
- House v The King (1936) 55 CLR 499
- McKinney v R (1991) 171 CLR 468
- R v Lowe (1997) 98 A Crim R 300
- R v Ngo [2003] NSWCCA 82
- R v Ngo; Dinh; Dao [2001] NSWSC 339
- R v Quami & Ors (AVL) [2015] NSWSC 1711