Citation: R v Fahmy (No. 1) [2026] NSWDC 333
Court: District Court of NSW
Date: 1 April 2026
Judge: Mahony SC DCJ
Background
The accused stands trial on charges prosecuted by the Commonwealth Director of Public Prosecutions. Two Crown witnesses, both former employees of a business associated with the accused, were required for cross-examination by the defence. Neither witness had been willing to provide a statement to investigators, and one had not appeared on the original Crown witness list.
The Crown filed a Notice of Motion seeking orders that both witnesses give their evidence by audio-visual link (AVL), relying on s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). Both witnesses were young mothers with significant childcare responsibilities that made attendance at court in person difficult or impossible.
The accused opposed the application. Counsel for the accused tendered letters from solicitors sent to each witness in 2022, alleging defamatory conduct and data interference following their respective terminations of employment, apparently going to the witnesses' credibility and motive to give evidence unfavourable to the accused.
Legal Issues
- Whether the requirements of s 5B(2) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) were satisfied, including the availability of AVL facilities, the relative inconvenience to the witnesses, and the potential unfairness to the accused.
- Whether it was in the interests of the administration of justice under s 5B(3) to permit the witnesses to give evidence by AVL.
- Whether a brief medical certificate, without detailed reasoning, satisfied the requirements for admissible opinion evidence under s 79 of the Evidence Act 1995 (NSW) in the context of an interlocutory application.
Decision
Issue 1: Admissibility of the medical certificate
The defence objected to a medical certificate from the treating GP of one witness (Ms Sankari), arguing it failed to meet the expert opinion requirements under s 79 of the Evidence Act 1995, as it did not set out the reasoning behind the opinion. The court allowed the certificate on the interlocutory application. His Honour found that the doctor, as a legally qualified GP and Fellow of the Australian College of GPs, was plainly applying specialised knowledge based on training, study and experience. Critically, the court noted that the certificate would not be placed before the jury and was relevant only to the interlocutory question.
Issue 2: Section 5B(2) requirements
His Honour was satisfied that the s 5B(2) criteria were met. AVL facilities at the NDIA premises in Liverpool had already been used in the trial and proven fit for purpose. The evidence clearly established that it would be less inconvenient for both witnesses to give evidence remotely. As to fairness, the court noted that the technology had already demonstrated its effectiveness during the trial for the showing of documents and for cross-examination, and found no real unfairness to the accused.
Issue 3: Interests of the administration of justice under s 5B(3)
His Honour applied the factors identified by the Court of Criminal Appeal in R v Ngo, including the public interest in a fair and efficient trial. The court found the personal circumstances of both witnesses compelling: Ms Bassal had a two-year-old child with a serious cardiac condition who had never been in anyone else's care, and faced a two-hour commute; Ms Sankari had five young children including an unwell toddler and had been certified unfit to attend court due to severe anxiety disorder and hypertension. His Honour was not satisfied that giving evidence by AVL would prevent the jury from assessing the witnesses' demeanour and credit in a way that would cause real prejudice to the accused. The test under s 5B(3) was satisfied.
Orders Made
- Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the evidence of the first witness at the trial be given by way of audio-visual link.
- Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the evidence of the second witness at the trial be given by way of audio-visual link.
Key Takeaways
- Under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), a court may permit witness evidence by AVL where the statutory criteria are met, including that it would be less inconvenient for the witness and that doing so serves the interests of the administration of justice.
- A brief medical certificate can satisfy s 79 of the Evidence Act 1995 on an interlocutory application, provided the certifying practitioner's qualifications make clear that the opinion is based on specialised knowledge, even where the certificate does not set out the full reasoning.
- Compelling personal circumstances, including serious childcare obligations and medical unfitness to attend, can satisfy the interests-of-justice requirement under s 5B(3), particularly when weighed against limited prejudice to the accused.
- The District Court acknowledged that advances in court technology since the COVID-19 pandemic have significantly improved the reliability of remote evidence, rendering earlier concerns about AVL quality less weighty than they once were.
- Prior adverse dealings between a witness and an accused, tendered to suggest credibility concerns, did not, of themselves, defeat an AVL application under s 5B.
Legislation and Cases Referenced
Legislation
- Evidence ( Audio and Audio Visual Links) Act 1998 (NSW)
Cases
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
- R v Kneebone (1999) 47 NSWLR 450