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Supreme Court 31 May 2022

R v Coss (No 3)

[2022] NSWSC 793

Homicide
CRIMINAL PROCEDURE TRIAL JUDGE ALONE MURDER EVIDENCE APPLICATION NOT OPPOSED

Citation: R v Coss (No 3) [2022] NSWSC 793
Court: Supreme Court of New South Wales
Date: 31 May 2022
Judge(s): Dhanji J

Background

This decision arose during a judge-alone murder trial being heard at the Supreme Court in Moree. The Crown applied for three witnesses to give their evidence remotely via audio visual link (AVL) rather than appearing in person in the courtroom.

The three witnesses were a former police officer residing on the Central Coast, a witness whose evidence related to the last known sighting of the deceased, and a third witness who suffered from agoraphobia. The accused did not oppose the application.

  • Whether the statutory conditions under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) were satisfied so as to permit each of the three witnesses to give evidence by AVL
  • In particular, whether the court was satisfied (which would preclude an AVL direction) that evidence from any of the three witnesses could more conveniently be given in the courtroom

Decision

Dhanji J considered the four conditions in s 5B(2) that, if established, would prevent a court from making an AVL direction. These are: unavailability of necessary facilities, greater convenience of in-court attendance, unfairness to a party, and the likelihood that the person will not actually give evidence. The defence did not oppose the application, and the Crown provided information from the bar table addressing each condition.

His Honour was positively satisfied that the necessary AVL facilities were available. Given the absence of opposition from the accused, there was no unfairness to any party, and there was no basis to think any of the three witnesses would refuse to give evidence.

The central question for each witness was whether in-court attendance would be more convenient. For the first witness, a former police officer living on the Central Coast whose evidence was described as entirely uncontroversial, in-court attendance was not more convenient. For the second witness, his unvaccinated status raised practical difficulties with courtroom attendance. For the third witness, her agoraphobia created a real prospect of difficulty giving evidence in the courtroom, and even though her evidence carried some potential significance in the trial, in-court attendance could not be said to be more convenient.

Dhanji J was satisfied on all three applications and made orders for AVL connections to be established at specified remote locations on the relevant hearing dates.

Orders Made

  • AVL connection to be established from the Supreme Court, Moree to Wyong Police Station for the first witness on 31 May 2022 at approximately 11am
  • AVL connection to be established to Moree Court House or Moree Police Station for the second witness on 1 June 2022 at approximately 10am
  • AVL connection to be established to Moree Court House or Moree Police Station for the third witness on 6 June 2022 at approximately 10am
  • The Office of the Director of Public Prosecutions to pay all reasonable costs associated with these arrangements
  • Liberty to apply on three days' notice

Key Takeaways

  • Under s 5B(2) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), a court must refuse an AVL direction if any one of four specified conditions is established; the absence of opposition does not automatically resolve those conditions, but it bears directly on the unfairness limb.
  • The practical circumstances of each witness are assessed individually: residential location, vaccination status, and a diagnosed medical condition such as agoraphobia can each be sufficient to establish that in-court attendance is not more convenient.
  • A witness's evidence having some potential significance at trial does not, of itself, require in-court attendance where a recognised personal difficulty with courtroom appearance exists.
  • The Supreme Court confirmed that the costs of AVL arrangements can be directed to the Office of the Director of Public Prosecutions where the Crown is the applicant seeking the directions.
  • This is a procedural ruling confined to its particular facts; it does not purport to set down any new principle beyond the application of the existing s 5B framework.

Legislation and Cases Referenced

Legislation:
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B

Cases cited: None cited in the judgment.