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Supreme Court 8 October 2024

R v Youseff (No 3)

[2024] NSWSC 1261

Homicide
CRIMINAL PROCEDURE EVIDENCE EVIDENCE GIVEN BY AUDIO VISUAL LINK WHERE WITNESS RESIDES IN QUEENSLAND WHERE WITNESS RECENTLY GIVEN BIRTH

Citation: R v Youseff (No 3) [2024] NSWSC 1261
Court: Supreme Court of New South Wales
Date: 8 October 2024
Judge: McNaughton J

Background

The accused stood trial for the murder of a man shot dead at a Tregear residence in the early hours of 30 November 2020. The Crown case included both circumstantial evidence, such as phone tower data and vehicle sightings, and alleged admissions made to a key witness, referred to by the pseudonym Ms Jones, in the hours surrounding the shooting.

Ms Jones resided in Queensland and had given birth to her second child on 30 August 2024, approximately ten days before she was due to give evidence. She suffered perineal injuries requiring significant suturing and had a fourteen-month-old child at home, with only family support available to her.

The Crown applied under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) for Ms Jones to give her evidence by audio-visual link (AVL) from Brisbane. The accused opposed the application, arguing that doing so would be unfair given the gravity of the charge and the centrality of her evidence to the Crown case.

  • Whether Ms Jones should be directed to give evidence by AVL pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
  • Whether permitting evidence by AVL in a murder trial, where the witness's credibility was squarely in issue, would be unfair to the accused

Decision

McNaughton J granted the Crown's application and directed Ms Jones to give evidence by AVL from Brisbane. His Honour noted that the medical and personal circumstances of Ms Jones, including her recent birth, physical injuries, breastfeeding, and reliance on family support in Queensland, provided a compelling basis for the direction. A consultant obstetrician had opined that separating a new mother from her newborn, or requiring travel with a newborn, would disrupt bonding and breastfeeding and increase the risk of postnatal depression.

His Honour acknowledged that Ms Jones was a significant witness and that her credit would be in issue at trial, given she was the sole source of the alleged admissions by the accused. However, the court reviewed earlier authorities and noted that even where credibility is central, courts have permitted AVL evidence in serious criminal proceedings, including murder trials.

The court found that advances in technology and the courts' increasing familiarity with AVL communication meant there was little, if any, detriment to receiving important evidence in this way, particularly where appropriate arrangements were in place to show the witness documents as needed and an independent person could maintain appropriate conditions at the remote location. The large screen in the courtroom was noted as providing a clear and consistent view of the witness.

To address any residual concern about unfairness to the accused arising from the witness not being physically present, the court observed that, if thought necessary, the jury could be directed that any difficulty in assessing the witness's credibility by reason of her evidence being given by AVL should be resolved in favour of the accused.

Orders Made

  • Ms Jones was directed to appear and give evidence by audio-visual link from Brisbane pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).

Key Takeaways

  • Under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), a court may direct that a witness give evidence by AVL; the question of whether doing so would be unfair to the accused is a central consideration in contested applications.
  • Recent childbirth accompanied by physical injury, breastfeeding obligations, and reliance on family support in a different state can together constitute sufficient grounds to justify an AVL direction, even in a murder trial.
  • The Supreme Court confirmed that the centrality of a witness's credibility to the Crown case does not, of itself, preclude an AVL direction; courts have exercised the power in serious criminal proceedings where credit was squarely in issue.
  • Where residual unfairness to an accused is a concern in AVL evidence situations, a direction to the jury that any difficulty in assessing credibility should be resolved in favour of the accused may address that concern.
  • Advances in AVL technology and the courts' and community's familiarity with video communication were treated as relevant factors reducing the practical detriment of remote evidence compared with in-court testimony.

Legislation and Cases Referenced

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

Cases
- Awad v The Queen (2022) 275 CLR 421; [2022] HCA 36
- Derbas v R [2007] NSWCCA 118
- Jarvie v The Magistrates' Court of Victoria [1995] 1 VR 84
- KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249
- McNamara v The King [2023] HCA 36
- R v AS [2023] NSWSC 885
- R v Sigalla [2016] NSWSC 1178
- R v Wilkie [2005] NSWSC 794