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Supreme Court 19 July 2024

R v Walmsley-Hume; R v Walmsley (No 3)

[2024] NSWSC 1692

Homicide
CRIME MURDER WHETHER CO TRIAL CASE MANAGEMENT VISUAL LINK SHOULD BE ORDERED

Citation: R v Walmsley-Hume; R v Walmsley (No 3) [2024] NSWSC 1692
Court: Supreme Court of New South Wales
Date: 19 July 2024
Judge(s): Wright J

Background

Two accused face a single count of murder arising from an incident on 24 February 2022 in South Nowra. The Crown alleges that the male accused deliberately drove a white utility off the road and struck a pedestrian, causing fatal injuries. The deceased died later that day at Shoalhaven District Memorial Hospital.

The male accused is charged on the basis that he intentionally drove at and struck the deceased with intent to kill or cause grievous bodily harm. The female accused faces murder charges as an alleged participant in a joint criminal enterprise, together with an alternative charge of being an accessory after the fact to murder based on conduct between February and April 2022. Both accused have pleaded not guilty to all charges.

This decision concerned a procedural application by the Crown, made before the trial proper, seeking directions that five witnesses give their evidence by audio-visual link (AVL) from locations in regional New South Wales rather than from the courtroom in Wollongong.

  • Whether the court had power under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to direct that evidence be given by AVL from places within New South Wales other than the courtroom
  • Whether the statutory preconditions in section 5B of that Act were satisfied, specifically that: the necessary facilities were available; the evidence could not more conveniently be given in the courtroom; and the direction would not be unfair to any party

Decision

Wright J noted that both accused consented to the application, dispensing with the need for a formal notice of motion and supporting affidavit. The court was satisfied that AVL facilities were widely and reliably available at NSW courthouses and at the Child Abuse Squad office in Narooma, meeting the first precondition in section 5B.

Three witnesses sought to give evidence from Nowra Courthouse. Their circumstances included childcare responsibilities, single-income work commitments, and a three-hour round trip to Wollongong. Two police officers sought to give evidence from Narooma, each living and working approximately three hours south of the court. The court accepted these practical difficulties and was satisfied the evidence could not more conveniently be given in the courtroom.

Because no party opposed the application, section 5B(3), which imposes a higher threshold requiring satisfaction that the direction serves the interests of the administration of justice, was not engaged. The court was also satisfied there was no basis to conclude any witness would refuse to give evidence, and that no unfairness to any party would result from the directions.

Orders Made

  • Pursuant to section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), evidence to be taken by audio-visual link from five named witnesses: Elise Plumpton, Lisa Burton, Todd Cooper Saunders, Constable Bradley Dudgeon, and Constable Jonathon Marr
  • The court noted the undertaking given by the Office of the Director of Public Prosecutions to meet the costs of arranging the relevant AVL links

Key Takeaways

  • Under section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), a court may direct that evidence be given by AVL from a location within New South Wales other than the courtroom, provided the statutory preconditions are satisfied.
  • The heightened "interests of the administration of justice" test in section 5B(3) applies only where a party opposes the direction; where all parties consent, that provision is not engaged.
  • Practical inconvenience to witnesses, including travel distances of several hours, childcare obligations, and work commitments, can satisfy the requirement that evidence could not more conveniently be given in the courtroom.
  • Widespread availability of AVL facilities in NSW courthouses and government offices is a matter the court was prepared to accept without further proof.
  • Consent by all parties to an AVL application permits the court to dispense with the formality of a notice of motion and supporting affidavit.

Legislation and Cases Referenced

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

Cases cited: None cited in the judgment.