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Supreme Court 31 July 2023

R v AS

[2023] NSWSC 885

Homicide
CRIMINAL LAW & PROCEDURE EVIDENCE EVIDENCE BY AUDIO VIDEO LINK APPLICATION OPPOSED TRAUMATISED WITNESS EMOTIONAL DISTRESS

Citation: R v AS [2023] NSWSC 885
Court: Supreme Court of New South Wales
Date: 31 July 2023
Judge: Wilson J

Background

The accused stood charged with the murder of his infant son at Auburn in June 2020. The trial was listed to commence on 2 August 2023. The accused pleaded not guilty.

The principal Crown witness was the accused's ex-wife, Ms N, who was also the deceased infant's mother. The couple divorced in August 2022, and Ms N had not seen the accused since that time.

Before trial, the Crown applied under s 5B(1) of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW) for an order permitting Ms N to give her entire evidence by audio visual link (AVL) from a remote witness room, rather than from the courtroom in the accused's physical presence. The accused opposed the application.

  • Whether the statutory preconditions under s 5B(2) of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW) that would prevent the making of an AVL direction were satisfied.
  • Whether, given the accused's opposition, it was in the interests of the administration of justice (under s 5B(3)) to direct that Ms N give evidence by AVL from a location other than the courtroom.
  • Whether permitting remote evidence would be unfair to the accused, including in relation to cross-examination, credibility assessment, and practical logistics.

Decision

Wilson J granted the Crown's application. Her Honour was not persuaded that any of the prohibitive circumstances in s 5B(2) applied. The necessary AVL facilities were available and of high quality, exhibits could be provided to an attending court officer in advance, and there was no basis to find the evidence would be more conveniently given in person or that Ms N would fail to give evidence.

The central contested question was whether the direction was in the interests of the administration of justice under s 5B(3). The accused argued that "face to face confrontation" with the witness was a forensic benefit of the courtroom environment, and raised practical concerns about recording evidence given in the Dari language, playing listening device material, and showing documents remotely. Wilson J accepted that these were legitimate considerations but found they did not outweigh the countervailing factors.

Her Honour accepted the evidence of Ms N's treating psychologist, Ms Hanifi, who had worked with Ms N since 2021. Ms Hanifi gave evidence that requiring Ms N to see the accused in court would likely cause emotional breakdown, flashbacks, and insomnia, and would seriously set back two years of therapeutic progress. An additional concern was the stigma the Afghani community attaches to divorced women, making exposure to a public gallery a source of particular distress.

Wilson J held that the interests of the administration of justice is a broad concept that includes the interests of witnesses, not merely the parties. The criminal justice system's function is not to inflict psychological harm on witnesses. Her Honour was satisfied the accused retained a full opportunity to cross-examine Ms N via AVL, that the jury could properly assess her credibility from remote evidence, and that the risk of false evidence was not meaningfully increased by the remote setting. The witness would remain under oath, supervised by a court officer, and visible to both counsel and the trial judge.

Orders Made

  • Ms N was directed to give the whole of her evidence by audio visual link from a remote witness room at either the Downing Centre or Taylor Square Courthouses.
  • The order was made on 26 July 2023, with evidence expected to run from 2 August to 9 August 2023.

Key Takeaways

  • Under s 5B(3) of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), where a party opposes a remote evidence direction, the applicant must satisfy the court that the direction is in the interests of the administration of justice. The Supreme Court confirmed that this standard encompasses the interests of witnesses, not only the interests of the parties.
  • Accepted expert psychological evidence of likely harm to a traumatised witness, combined with evidence of prior distress when giving related testimony, provided sufficient foundation for an AVL order.
  • No unfairness to the accused was established merely because the principal Crown witness would not appear in person. The opportunity for cross-examination and the jury's ability to assess credibility were preserved through the AVL process, consistent with KN v R (2017) 95 NSWLR 767.
  • Cultural factors bearing on a witness's wellbeing, including community stigma attached to a witness's personal circumstances, formed part of the relevant considerations in assessing the interests of the administration of justice.
  • The risk that a remote setting might facilitate false evidence was dismissed. The Supreme Court reasoned that the formality of giving evidence before the court, even from a remote room under officer supervision, carries sufficient solemnity to deter perjury.

Legislation and Cases Referenced

Legislation:
- Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), s 5B
- Criminal Procedure Act 1986 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249
- R v Sigalla [2016] NSWSC 1178
- Rooney v AGL Energy Limited (No 2) [2020] FCA 942
- DJX; SCY and GCZ (1990) 91 Cr App R 36