Citation: [2022] NSWSC 187
Court: Supreme Court of NSW
Date: 28 February 2022
Judge(s): Dhanji J
Background
This decision arose during a criminal trial being heard at the Supreme Court in Katoomba. The Crown applied for an order permitting an expert witness, a medical practitioner, to give evidence remotely by audio visual link from the Lidcombe Coroner's Court rather than appearing in person.
The defence did not oppose the application. The decision is a companion ruling to an earlier judgment in the same proceedings, R v Songcuan (No 1) [2022] NSWSC 196, in which Dhanji J addressed the same issue for other witnesses in the trial.
Legal Issues
- Whether the court had power under s 22C of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to order a witness to appear by audio visual link.
- Whether it was in the interests of justice to make such an order under s 22C(6) of that Act.
Decision
Issue 1: Power to make the order
Section 22C of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) was engaged because the Evidence (Audio and Audio Visual Links) Regulation 2015 (NSW) prescribed 26 March 2022 as the relevant date for the purposes of s 22C(9). That provision activated the court's power under s 22C(4) to order a witness to appear by audio visual link (at [2]).
Issue 2: Interests of justice
Before making the order, Dhanji J was required by s 22C(6) to be satisfied that it was in the interests of justice to do so. That assessment required consideration of: the public health risk posed by the COVID-19 pandemic; the efficient use of judicial and administrative resources; any relevant matters raised by a party; and any other relevant matters. Only the first two factors were relevant in the circumstances (at [3]).
His Honour was satisfied that both the ongoing public health risks of the pandemic and the efficient use of judicial and administrative resources supported the making of the order. Accordingly, the order was granted (at [3]).
Orders Made
- An audio visual link to be established from the Supreme Court, Katoomba, to the Lidcombe Coroner's Court for the witness, commencing 2 March 2022 at 10am.
- The Office of the Director of Public Prosecutions to pay all reasonable costs associated with the arrangements.
- The parties to have liberty to apply on three days' notice in relation to the orders.
Key Takeaways
- Section 22C of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), read together with the 2015 Regulation, provided the legislative basis for ordering a witness to give evidence by audio visual link in NSW Supreme Court criminal proceedings during the COVID-19 period (at [2]).
- Under s 22C(6), a court must be affirmatively satisfied that making such an order is in the interests of justice before it grants the application (at [3]).
- The interests of justice assessment under s 22C(6) encompasses public health risk, efficient use of judicial and administrative resources, matters raised by the parties, and any other relevant considerations (at [3]).
- In this instance, the COVID-19 public health risk and judicial efficiency together sufficed to meet the interests of justice threshold, even without opposition from the defence (at [3]).
- Costs associated with audio visual link arrangements were allocated to the prosecuting authority, the Office of the Director of Public Prosecutions, rather than falling on the witness or the court.
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