Citation: R v Dawson [2022] NSWSC 759
Court: Supreme Court of New South Wales
Date: 8 June 2022
Judge: Harrison J
Background
The accused stood trial for murder in the Supreme Court. The Crown proposed to call a witness, referred to here by his role as a witness to an alleged conversation with the accused during a plane trip. That conversation formed a significant part of the Crown's anticipated evidence.
Shortly before the witness was due to be called, the Crown filed an application for him to give evidence by audio visual link from a suburban Sydney police station rather than attend court in person. The application was supported by medical evidence, including a radiological report indicating the witness had sustained a possible compression fracture of the first lumbar vertebra following a fall, with associated spinal pathology.
The defence opposed the application. Counsel for the accused argued that given the nature and importance of the anticipated evidence, the witness should be required to attend court personally.
Legal Issues
- Whether the Crown had established sufficient grounds to permit the witness to give evidence by audio visual link rather than attending court in person
- What standard of medical necessity must be met before a court will excuse a witness from personal attendance in a criminal trial, particularly where that witness's evidence is significant to the accused's defence
Decision
Harrison J acknowledged the medical evidence before the court but found it insufficient to justify dispensing with the witness's personal attendance. The court drew a distinction between a witness who is genuinely unable to attend safely, due to being in extremis or constitutionally or medically incapable of travelling, and a witness who simply prefers not to travel for medical reasons. The application fell into the latter category.
The court accepted the defence submission that the witness's presence in the courtroom was essential from the defence perspective. Counsel for the accused indicated that documents were to be put to the witness during cross-examination, and the court accepted that this exercise would be more effective if conducted in person rather than through a screen.
Harrison J rejected the Crown's application as it stood, but left open the possibility of reconsidering the matter. The court indicated it would revisit the question if fresh evidence showed the witness's safety was at considerable risk, or that there was a real and reasonable prospect his condition would irreparably deteriorate if he were required to travel to Sydney.
Orders Made
• The Crown's application for Mr Silkman to give evidence remotely or not attend court is rejected
• Mr Silkman is ordered to attend court personally to give evidence
• The court reserves the right to reconsider this order if evidence is provided that Mr Silkman's safety would be at considerable risk or if there is a real or reasonable prospect that his condition would irreparably and irrevocably deteriorate if required to travel to Sydney
Key Takeaways
- A witness's preference not to travel for medical reasons does not, without more, satisfy the threshold for giving evidence by audio visual link in a criminal trial; a higher standard applies, closer to an inability to attend safely.
- The Supreme Court drew a clear distinction between a witness who is in extremis or medically unable to travel and one who is merely reluctant to do so on medical grounds.
- Where anticipated cross-examination involves placing documents before a witness, a court may treat the witness's physical presence as essential to the effective conduct of that examination.
- The court left open the possibility of revisiting the ruling if further medical evidence demonstrated a genuine and serious risk to the witness's health from travel.
- In a murder trial, the significance of a witness's anticipated evidence is a relevant consideration when weighing an application to take that evidence remotely.
Legislation and Cases Referenced
No legislation or cases were cited in the provided text of this decision.