Citation: R v Macdonald; R v Maitland [2022] NSWSC 1207
Court: Supreme Court of New South Wales
Date: 18 August 2022
Judge(s): Dhanji J
Background
Two accused faced retrial on indictment in connection with offences of wilful misconduct in public office, with one accused charged as the principal and the other as an aider and abettor. Each charge related to events occurring on separate dates in 2008. The retrial was listed to commence on 5 September 2022.
Both accused indicated their intention to elect a judge alone trial and had each submitted the required election forms to the court. The Crown did not oppose the making of a judge alone order.
One accused was unrepresented and residing in Victoria. Because of his unrepresented status, the court considered it desirable for him to give brief oral evidence confirming his election and confirming he had received appropriate advice before the order was made.
Legal Issues
- Whether the unrepresented accused should give short oral evidence to confirm his judge alone election and the advice received before the order was made.
- Whether that evidence could be received via an audio-visual link, given the accused resided interstate and the trial was imminent.
- Whether a hybrid arrangement (where the court could see and hear the accused, but the accused could only hear and not see the court) satisfied the requirements for a direction under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).
Decision
Dhanji J determined it was desirable that the unrepresented accused give brief evidence confirming his election for a judge alone trial before the order was formally made. Given the accused resided in Victoria and the retrial was imminent, the court formed the view that requiring him to appear in person would be unnecessary and impractical.
The court acknowledged a technical limitation with the audio-visual connection: while the court could both see and hear the accused, the accused could only hear the court and could not see it. Dhanji J was satisfied this limitation did not prevent the making of a direction, describing the arrangement as a "hybrid audio and audio visual link."
In exercising the discretion to make the direction, the court applied the relevant considerations under s 5B(2) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). The court was satisfied that the necessary facilities were available, that giving evidence in the courtroom was not more convenient in the circumstances, that the direction would not be unfair to any party, and that the accused was the person in respect of whom the direction was to be given.
The court directed the accused to give evidence by way of the hybrid link for the limited purpose of confirming the judge alone election.
Orders Made
- The unrepresented accused was directed to give evidence by way of a combination of audio and audio-visual link for the purpose of confirming the judge alone election.
Key Takeaways
- Where an accused is unrepresented, a court may require brief oral evidence confirming a judge alone election and the receipt of relevant advice before making the election order.
- Under s 5B(2) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the court must be satisfied that: necessary facilities are available; in-court evidence is not more convenient; the direction will not be unfair to any party; and the relevant person will give evidence.
- A technical imperfection in an audio-visual connection (where the witness can hear but not see the court, while the court can both see and hear the witness) does not necessarily prevent a direction being made under the Act.
- The Supreme Court characterised the arrangement as a "hybrid audio and audio visual link," indicating that partial audio-visual connectivity may still satisfy the requirements for a direction in appropriate circumstances.
- Residence interstate and the proximity of a trial date were treated as relevant factors weighing against requiring the accused to appear in person, where the evidence required was brief and of limited scope.
Legislation and Cases Referenced
Legislation:
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B(2)
Cases cited: None cited in the judgment.