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Supreme Court 22 May 2023

R v Niguidula (No 7)

[2023] NSWSC 571

Homicide
CRIMINAL PROCEDURE TRIAL MURDER EVIDENCE NOT OPPOSED

Citation: R v Niguidula (No 7) [2023] NSWSC 571
Court: Supreme Court of New South Wales
Date: 22 May 2023
Judge(s): Dhanji J

Background

This decision arose during a murder trial before the Supreme Court of New South Wales. The Crown applied for a police witness, a sergeant, to give his evidence remotely rather than travelling to Sydney to attend court in person.

The application was made under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), which permits courts to direct that evidence be given via audio visual link (AVL) in certain circumstances. The accused did not oppose the application.

  • Whether the statutory conditions under s 5B(2) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) that prohibit a court from making an AVL direction were satisfied, so as to prevent the order being made.

Decision

Section 5B(2) of the Act sets out four circumstances in which a court must not direct a witness to give evidence by AVL: where the necessary facilities are unavailable, where the evidence can more conveniently be given in the courtroom, where the direction would be unfair to a party, or where the court is not satisfied the person will actually give evidence.

Dhanji J considered each condition in turn. His Honour was satisfied that AVL facilities were available at the witness's local police station, noting that such facilities are commonly found in police stations. He was not satisfied that it would be more convenient for the witness to travel to Sydney, having particular regard to the circumstances surrounding the witness's difficulty in making that journey.

On the question of fairness, his Honour took into account that the accused did not oppose the application and found no unfairness to any party. His Honour was also satisfied, having regard to the witness's identity as a serving police officer, that the witness would give evidence as required if called via AVL.

Finding that none of the prohibiting conditions in s 5B(2) applied, Dhanji J concluded it was appropriate to make the direction and granted the Crown's application.

Orders Made

  • Pursuant to s 5BAA of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), one police witness directed to give evidence to the court by audio visual link from a location in New South Wales other than the courtroom.
  • The witness the subject of that direction is Sergeant Malcolm Elliott.
  • The Office of the Director of Public Prosecutions undertook to pay all appropriate fees or charges as required.

Key Takeaways

  • Under s 5B(2) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), a court must not make an AVL direction if any one of four specified conditions applies; where none applies, the direction may be made.
  • The Supreme Court found that the availability of AVL facilities at a police station is a matter of common knowledge, satisfying the requirement that the necessary facilities be available.
  • A witness's personal difficulty in travelling to the court's location is a relevant consideration when assessing whether evidence can more conveniently be given in the courtroom.
  • The absence of opposition from the accused was a factor informing the court's conclusion that an AVL direction would not be unfair to any party.
  • A witness's status as a serving police officer was treated as relevant to the court's satisfaction that the person would give evidence if called via AVL.

Legislation and Cases Referenced

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

Cases cited: None cited in this decision.