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Supreme Court 8 March 2023

R v Knight (No 1)

[2023] NSWSC 195

Homicide

Citation: R v Knight (No 1) [2023] NSWSC 195
Court: Supreme Court of New South Wales
Date: 8 March 2023
Judge: Yehia J

Background

The accused had pleaded guilty to one count of murder in connection with the death of his long-term partner, a member of the same Indigenous community in Bourke. Both parties had lived in Bourke for many years and had eight children together. The sentencing proceedings were listed before the Supreme Court sitting in Bourke on 30 and 31 March 2023.

An earlier direction had been made requiring the accused to appear in person for sentencing. However, the court had not, at that earlier stage, been taken to section 5BB(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), which creates a statutory presumption that an accused detainee appears by audio-visual link (AVL) in criminal proceedings other than "physical appearance proceedings."

The accused then filed a Notice of Motion seeking to revoke the in-person direction and replace it with an AVL appearance. The Crown opposed the application, relying on representations from the deceased's sisters and emphasising the importance of Indigenous cultural values requiring the accused to be present on country for sentencing.

  • Whether sentencing proceedings constitute "physical appearance proceedings" under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), thereby displacing the AVL presumption.
  • Whether it was in the "interests of the administration of justice" under section 5BB(4) of the Act to require the accused to appear physically before the Court.
  • What weight, if any, should be given to Indigenous cultural values and the wishes of the deceased's family when determining whether the statutory presumption is displaced.

Decision

Yehia J confirmed that sentencing proceedings are not "physical appearance proceedings" as defined in section 3 of the Act. This meant the statutory presumption in favour of AVL appearance under section 5BB(1) applied, and the Court could only direct physical attendance if satisfied it was in the "interests of the administration of justice" to do so.

The Court acknowledged the growing recognition of Indigenous cultural values and principles within the New South Wales criminal justice system, referencing the Bugmy Bar Book and the NSW District Court Walama List as examples of that acknowledgment. Yehia J accepted that the Crown's reliance on the importance of the accused appearing on country reflected genuine and legitimate cultural considerations, and the Court did not dismiss those matters lightly.

Nonetheless, the Court was not persuaded that those cultural considerations, in the circumstances of this particular case, were sufficient to displace the statutory presumption. The proposed physical transfer was lengthy and logistically burdensome, requiring the accused to be moved through multiple correctional and police facilities over several days. For the duration of his stay in Bourke, the accused would be held in police cells with no exercise yard, no natural light, no visitor access, and no telephone access.

The Court also noted the significant drain the physical transfer would place on local police resources in Bourke, including the need for a dedicated custody manager and two court escorts throughout proceedings. Weighing all of these factors, Yehia J concluded the statutory presumption was not displaced.

Orders Made

  • The direction that the accused appear in person at the Supreme Court of New South Wales at Bourke for sentencing on 30 and 31 March 2023 was revoked pursuant to section 20F of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).
  • A warrant was issued for the accused's appearance at sentencing on those dates by way of audio-visual link in accordance with section 5BB(1) of the Act.

Key Takeaways

  • Sentencing proceedings are not "physical appearance proceedings" under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), meaning the statutory presumption in favour of AVL appearance applies to them.
  • Under section 5BB(4) of the Act, the court may only direct physical attendance if satisfied that doing so is in the "interests of the administration of justice," having regard to all relevant circumstances.
  • The Supreme Court recognised the growing role of Indigenous cultural values in New South Wales criminal law, including the use of resources such as the Bugmy Bar Book, but held that cultural considerations alone did not displace the presumption in the specific circumstances before it.
  • Practical factors, including the length and discomfort of the proposed custodial transfer, the conditions of confinement at the receiving facility, and the burden on local police resources, weighed against requiring physical attendance.
  • No reported authority existed to guide the Court on the meaning of "interests of the administration of justice" in this precise context, where an accused (rather than the prosecution) was seeking to appear by AVL and the Crown was opposing that course.

Legislation and Cases Referenced

Legislation:
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 3, 5BB, 20F
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- R v Fernando (1992) 76 A Crim R 58
- Bugmy v The Queen (2013) 249 CLR 571

Other Resources:
- The Bugmy Bar Book
- NSW District Court Walama List