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Supreme Court 18 May 2023

R v Early (No 5)

[2023] NSWSC 580

Homicide

Citation: R v Early (No 5) [2023] NSWSC 580
Court: Supreme Court of New South Wales
Date: 18 May 2023
Judge: Yehia J

Background

The accused faced a single count of murder arising from events alleged to have occurred in Randwick in January 1987. A key Crown witness, residing in Queensland, was expected to give evidence of an alleged admission by the accused to the killing.

The Crown had previously sought a direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (NSW) permitting the witness to give evidence by audio-visual link (AVL). That application was refused on 9 May 2023 (see R v Early (No 4) [2023] NSWSC 505).

Following that refusal, authorities contacted the witness to arrange travel to Sydney. It was then discovered that the witness had suffered a bathroom fall on 8 May 2023, injuring his chest and losing consciousness briefly. He had since been hospitalised, diagnosed with community-acquired pneumonia, and was unable to travel by air. The Crown renewed its AVL application on 15 May 2023, this time supported by fresh medical evidence.

  • Whether, in light of changed circumstances since the first application, the court should now direct the witness to give evidence by AVL under s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (NSW)
  • Whether the medical evidence established that the witness genuinely could not travel to Sydney by road or air
  • Whether granting an AVL direction would adequately protect the accused's right to a fair trial, given the importance of the witness's evidence

Decision

Yehia J accepted the medical evidence of Dr Papior, who had examined the witness at Bundaberg Hospital. The doctor confirmed that the witness had sustained a head injury causing a brief loss of consciousness, was suffering significant chest pain, and had been diagnosed with pneumonia. Air travel was medically contraindicated. The only remaining option, a 13-hour-40-minute drive via the Pacific Highway, was also assessed as unsuitable: the pain relief required for such a journey could involve strong opiates, creating heightened risks given the witness's age and comorbidities including ischaemic heart disease, hypertension, and high cholesterol.

The judge also accepted the witness's own evidence on the voir dire (a preliminary hearing to assess admissibility or fitness to give evidence). The witness confirmed he remained in significant pain and could not manage a 14-hour drive, even with frequent stops. Yehia J was satisfied the witness was honest in his answers.

Notwithstanding the acknowledged importance of in-person attendance by witnesses, and the fundamental right of the accused to a fair trial, Yehia J concluded that the changed circumstances since 9 May 2023 warranted a different outcome. The fresh medical and witness evidence was sufficient to justify an AVL direction in the interests of the administration of justice.

The court directed that the witness give evidence by AVL from Bundaberg Court.

Orders Made

  • Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (NSW), Barry Sutton was directed to give evidence by audio-visual link from Bundaberg Court rather than in the courtroom.

Key Takeaways

  • The Supreme Court granted an AVL direction on a renewed application where materially changed circumstances, specifically a new injury and a pneumonia diagnosis, had arisen after an earlier application was refused.
  • A prior refusal of an AVL direction does not preclude a fresh application where the factual basis has changed; the court assessed the second application on the new evidence before it.
  • Under s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (NSW), the administration of justice standard can be met where a witness faces genuine medical barriers to travel, particularly where the only alternative (road transport) would carry serious health risks given the witness's age and existing comorbidities.
  • The importance of a witness giving evidence in person, and its significance for assessing demeanour, remained a live consideration. The court weighed it against the medical realities before concluding the direction was justified.
  • Where medical evidence indicates that pain relief adequate for a long journey could impair a witness's capacity to give reliable evidence, that factor is relevant to the AVL direction analysis.

Legislation and Cases Referenced

Legislation:
- Evidence (Audio and Audio Visual Links) Act 1988 (NSW), s 5B

Cases:
- R v Early (No 4) [2023] NSWSC 505