Citation: R v Geeves; R v Geeves (No. 2) [2024] NSWSC 823
Court: Supreme Court of New South Wales
Date: 4 July 2024
Judge(s): Lonergan J
Background
This decision arose in the course of a murder trial conducted at Wagga Wagga. The Crown applied for directions under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) permitting eleven witnesses to give their evidence by audio-visual link (AVL) rather than in person. The application was supported by a statement from Detective Senior Constable Cary outlining the logistical difficulties each witness faced in travelling to Wagga Wagga.
Counsel for the two accused consented to AVL directions for four of the eleven witnesses. The remaining seven were contested, requiring the Crown to satisfy the court that granting the directions would be in the interests of the administration of justice, as required by s 5B(3) of the Act.
The witnesses in dispute included social workers, a travel agent, and others who had dealings with the deceased or with relevant child protection matters. Their evidence varied in nature and importance, but several were expected to be subject to significant credibility challenges in cross-examination.
Legal Issues
- Whether the preconditions in s 5B(2) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) were satisfied for each contested witness
- Whether, where opposition was raised, the Crown could demonstrate that AVL directions were in the interests of the administration of justice under s 5B(3)
- The extent to which the credibility of a witness, and the nature of anticipated cross-examination, bears on the fairness of permitting evidence by AVL in a criminal trial
- Whether convenience and logistical difficulty alone are sufficient to justify an AVL direction over the objection of an accused
Decision
Lonergan J granted AVL directions without opposition for four witnesses (Tracy Ford, Leon Henry, Brenda MacLeod and John Gibbons), having been satisfied of all the matters required by s 5B(2). For those witnesses, the court accepted that the necessary facilities were available, that evidence could not more conveniently be given in the courtroom, and that no unfairness to the accused arose.
For the seven contested witnesses, her Honour applied the principles summarised by Yehia J in R v Early (No 4) [2023] NSWSC 505, with particular emphasis on the observation from Antov v Bokan (No 2) (2019) that constraining a party to cross-examine by video link may, depending on the circumstances, involve a relevant degree of unfairness. The court noted that where an important witness's credibility is in issue, it is preferable that the witness give evidence in the courtroom.
In relation to Jacqueline Thompson and Jade Wynn, the court found that both were important witnesses expected to be cross-examined on a range of documents and prior conduct. Requiring that cross-examination to occur by AVL would be unfair to the accused persons, and the court refused the directions on that basis under s 5B(2)(c). For Angela Fitzpatrick and Mavis Yardley, directions were also refused, on the basis that they were significant witnesses whose evidence and credibility warranted in-court examination, meaning the Crown had not satisfied the court the directions were in the interests of the administration of justice. Helen Mackie's evidence, though described as impressionistic, similarly warranted in-court examination under s 5B(3). The applications concerning Allan Payne and Janice Broderick were adjourned pending updated information about their respective circumstances.
Orders Made
• Declined to make direction for Ms Thompson to give evidence by audio visual link; Ms Thompson to give evidence in court
• Declined to make direction for Jade Wynn to give evidence by audio visual link; Jade Wynn to give evidence in court
• Refused to make direction for Helen Mackie to give evidence by audio visual link; Ms Mackie to give evidence in court
• Adjourned consideration of application regarding Allan Payne to allow for update
• Adjourned consideration of application regarding Janice Broderick to allow for updated information
Key Takeaways
- Under s 5B(3) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), where an accused opposes an AVL direction, the burden falls on the applicant party to affirmatively satisfy the court that the direction is in the interests of the administration of justice.
- Logistical inconvenience for witnesses is a relevant factor but does not, by itself, discharge the Crown's obligation under s 5B(3) when an accused objects to an AVL direction.
- Where a witness is important and their credibility is squarely in issue, the Supreme Court confirmed it is generally preferable for that witness to give evidence in person, particularly where significant cross-examination on documents is anticipated.
- The court adopted the approach in Antov v Bokan (No 2) that an evaluative assessment of unfairness is required, taking into account factors such as the importance of the witness, whether credit is in issue, and the nature of the documents involved.
- Consent by an accused to an AVL direction remains a material consideration: where consent is given, the court's task under s 5B(2) is more straightforward than when opposition is maintained.
Legislation and Cases Referenced
Legislation:
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5B(2), 5B(3)
Cases:
- R v Early (No 4) [2023] NSWSC 505
- R v Ngo (2003) 47 NSWLR 55; [2003] NSWCCA 82
- KN v R (2017) NSWLR 767; [2017] NSWCCA 249
- Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250
- R v Abdaly; R v Hooseinishoja (No 4) [2022] NSWSC 1529
- R v Qaumi and Ors (No 9) [2016] NSWSC 171
- ASIC v Rich [2004] NSWSC 467; (2004) 49 ACSR 578
- Kirby v Centro Properties Limited [2012] FCA 60; 288 ALR 601
- Hughes v Whittens Group Pty Ltd [2017] NSWSC 329
- Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152; [2009] FCA 1306
- R v Wilkie, R v Burroughs, R v Mainprize (2005) 193 FLR 291; [2005] NSWSC 794
- R v Lodhi [2006] NSWSC 587; (2006) 163 A Crim R 488