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Supreme Court 9 May 2023

R v Early (No 4)

[2023] NSWSC 505

Homicide
YEARS

Citation: R v Early (No 4) [2023] NSWSC 505
Court: Supreme Court of New South Wales
Date: 9 May 2023
Judge: Yehia J

Background

The accused stood trial for the murder of Raymond Frederick Keam, who was found deceased in Alison Park, Randwick, in the early hours of 13 January 1987. The Crown alleged the accused either directly assaulted Mr Keam or participated in a group assault that caused his death from a subarachnoid haemorrhage.

A key Crown witness was Barry Sutton, the accused's brother, who lived in Bundaberg, Queensland. In a statement taken in 2021, Barry Sutton told police that when the accused visited him in Bundaberg shortly after the death, the accused said he had "gotten into a blue with a bloke in the park" and had fled to Queensland because he thought "the coppers might have been after him." The Crown relied on this account both as an admission and as evidence of consciousness of guilt through flight.

The Crown applied by Notice of Motion for Barry Sutton to give his evidence by audio-visual link (AVL) from Bundaberg Courthouse, relying on s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). The accused opposed the application.

  • Whether the interests of the administration of justice required a direction that Barry Sutton give evidence by AVL under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
  • Whether the witness's age, medical conditions, distance from Sydney, and personal preference were sufficient grounds to justify an AVL direction
  • What weight, if any, should be given to the nature and importance of the witness's evidence when assessing an AVL application

Decision

Yehia J refused the application for Barry Sutton to give evidence by AVL. The central reason was that the witness's own treating doctor, Dr Kerswill, ultimately confirmed that Barry Sutton was fit to travel to Sydney. While the medical evidence initially appeared inconsistent, Dr Kerswill's cross-examination clarified that his concerns were conditional: the cardiac risk arose from stress and perceived duress, and the heart disease had been stable since a stent was inserted in 2001. The doctor's bottom-line assessment was that the witness was fit to make the trip.

Yehia J placed significant weight on the importance of Barry Sutton's evidence to the trial. The evidence was hotly contested, relied upon as both an admission and as evidence of consciousness of guilt, and formed a central plank of the Crown case. In that context, the accused's right to a fair trial required that the jury have the opportunity to assess the witness's credibility and reliability in person, in the courtroom.

The court acknowledged that requiring Barry Sutton to travel would involve inconvenience given his age (74 years), his ischemic heart disease, and his severe osteoarthritis. However, inconvenience and personal preference were not sufficient to displace the interests of the administration of justice in a serious criminal trial where the witness's account was genuinely in dispute. The court noted that while AVL may save costs and reduce inconvenience, those considerations could not too easily override the entitlement to a fair trial.

A separate and uncontested order was made permitting another witness, Margaret Sutton, to give evidence by AVL, as her evidence was conceded to be peripheral to the disputed issues.

Orders Made

  • The application for Barry Sutton to give evidence by audio-visual link from Bundaberg Courthouse was refused.
  • Margaret Sutton was permitted to give evidence by audio-visual link (this order was not opposed and was granted separately).

Key Takeaways

  • Under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the relevant test is whether an AVL direction is in the interests of the administration of justice; a witness's personal preference and interstate residence are relevant factors but are not determinative.
  • Where medical evidence confirms a witness is fit to travel, the existence of chronic health conditions does not automatically satisfy the threshold for an AVL direction, even in combination with age and inconvenience.
  • The centrality and contested nature of a witness's evidence are directly relevant to the AVL analysis: the more important and disputed the evidence, the stronger the interest in in-person testimony to allow proper credibility assessment.
  • Refusing the application, the Supreme Court affirmed that cost savings and convenience cannot too easily override a criminal accused's entitlement to a fair trial, particularly where the charge is serious and may result in loss of liberty.
  • A distinction was drawn between two witnesses in the same application: the peripheral witness was permitted to give evidence by AVL without objection, while the critical witness was required to attend in person.

Legislation and Cases Referenced

Legislation
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5B, 5B(2), 5B(3)

Cases
- Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250
- KN v R (2017) NSWLR 767; [2017] NSWCCA 249
- R v Abdaly; R v Hooseinishoja (No 4) [2022] NSWSC 1529
- R v Ngo (2003) 47 NSWLR 55; [2003] NSWCCA 82
- Rooney v AGL Energy Limited (No 2) [2020] FCA 942