Citation: R v Macdonald; R v Maitland (No 6) [2022] NSWSC 1270
Court: Supreme Court of New South Wales
Date: 20 September 2022
Judge: Dhanji J
Background
This decision arises from a criminal retrial being heard by Dhanji J sitting alone. The two accused, Macdonald and Maitland, are the defendants in the retrial proceedings.
The Crown sought leave for one of its witnesses, a woman residing near Newcastle, to give her evidence remotely via audio visual link (AVL) rather than travelling to the Sydney courtroom. The witness had already given evidence in the first trial, and a transcript of that earlier evidence had been tendered in the retrial.
Neither accused opposed the application. Dhanji J dealt with the matter ex tempore (that is, delivering an immediate oral judgment without written preparation).
Legal Issues
- Whether the court had power to direct that evidence be given by AVL under s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
- Whether any of the four statutory bars in s 5B(2) prevented the making of such a direction, in particular whether the evidence could more conveniently be given in the courtroom
Decision
Section 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) confers power on the court to direct that a witness give evidence by AVL. However, s 5B(2) prohibits such a direction in four circumstances: where facilities are unavailable, where evidence can more conveniently be given in court, where the direction would be unfair to a party, or where the person will not give evidence.
Dhanji J was satisfied that none of those four bars applied. The necessary AVL facilities were available at the Office of the Director of Public Prosecutions in Newcastle. Neither accused raised any unfairness objection, and the judge was satisfied the witness would give evidence.
The central evaluative question was convenience. The judge noted that the witness's additional evidence in the retrial was relatively brief and not significantly contentious, given that her prior testimony had already been tendered. Weighed against that, the witness lived near Newcastle, had care obligations for an elderly relative, and a return journey to Sydney of approximately four hours would interfere with those obligations.
On that balance, Dhanji J was positively satisfied that giving evidence by AVL was the more convenient course, and accordingly made the direction.
Orders Made
- An audio visual link to be established from the Supreme Court, Darlinghurst, to the Office of the Director of Public Prosecutions, Newcastle office, for witness Julie Moloney on 20 September 2022 at approximately 10:15 am
- The Office of the Director of Public Prosecutions to pay all reasonable costs associated with those arrangements
Key Takeaways
- Under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), a court must refuse an AVL direction only where one of the four statutory bars in s 5B(2) is established; the absence of opposition from the parties is a relevant but not determinative factor.
- The "more convenient" test in s 5B(2)(b) requires a positive finding that in-court evidence would be more convenient; where personal circumstances such as carer obligations and travel burden weigh against attendance, the test may not be satisfied.
- Where a witness's evidence in a retrial is brief and uncontentious, and her prior testimony has already been tendered, those factors support a finding that AVL is the more convenient mode.
- The Supreme Court directed that the costs of the AVL arrangements be borne by the Office of the Director of Public Prosecutions, reflecting that the Crown was the applicant seeking the arrangement.
- This is a brief procedural ruling with no contested factual or legal dispute; its significance is confined to the application of s 5B(2) on the particular facts.
Legislation and Cases Referenced
Legislation:
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
Cases cited: None cited in the judgment.