Citation: [2022] NSWSC 186
Court: Supreme Court of NSW
Date: 28 February 2022
Judge(s): Dhanji J
Background
This decision arose in the course of a criminal trial in the Supreme Court. The Crown applied for six witnesses to give evidence by audio visual link rather than appearing in person. The defence did not oppose the application.
The judgment records the reasons for orders made on 17 February 2022, directing those witnesses to appear remotely. The ruling is procedural in nature and addresses the legislative framework governing such directions during the COVID-19 period.
Legal Issues
- Whether the court had power under s 22C of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to direct witnesses to appear by audio visual link during the prescribed COVID-19 period
- Whether making such directions was in the interests of justice, having regard to the matters specified in s 22C(6)
Decision
Issue 1: Applicable legislative framework
Section 22C of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) applied to these proceedings by operation of s 22C(1), s 22C(9), and cl 4B of the Evidence (Audio and Audio Visual Links) Regulation 2015 (NSW) (at [2]). The prescribed period extended to the beginning of 26 March 2022, meaning s 22C remained in force at the time the orders were made (at [2]).
Issue 2: Power to direct appearance by audio visual link
Section 22C(4) provides that a witness's appearance may take place by audio visual link if the court directs, and that a direction should be made only where it is in the interests of justice having regard to the matters in s 22C(6)(a)-(d) (at [3]).
Issue 3: Interests of justice
The court was satisfied that directing the six witnesses to appear remotely was in the interests of justice (at [4]-[5]). In reaching that conclusion, the court had regard to the public health risk posed by the COVID-19 pandemic and the efficient use of judicial and administrative resources. No party raised any other matter, and the court identified no further relevant considerations (at [4]).
Orders Made
- Orders made for six named witnesses to give evidence by audio visual link.
Key Takeaways
- Section 22C of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), read together with the corresponding Regulation, provided the operative power for directing witnesses to appear by audio visual link during the COVID-19 prescribed period, which ran until the beginning of 26 March 2022 (at [2]).
- Under s 22C(4), such a direction could only be made where the court was satisfied it was in the interests of justice, with reference to the specific considerations in s 22C(6) (at [3]).
- The Supreme Court accepted that COVID-19 public health risks and efficient use of judicial and administrative resources were sufficient, in combination, to satisfy the interests of justice test on the facts of this case (at [4]).
- The absence of any objection from the defence was noted, though the decision turned on the court's own assessment of the statutory criteria rather than on consent alone (at [1], [4]).
Legislation and Cases Referenced
Legislation
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
- Evidence (Audio and Audio Visual Links) Regulation 2015 (NSW)
Cases
- Not stated