Citation: [2026] NSWSC 327
Court: Supreme Court of New South Wales
Date: 9 April 2026
Judge(s): Hamill J
Background
Three accused persons are on trial for the murder of Anthony Nugent. The Director of Public Prosecutions sought a direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ("the AVL Act") to allow a witness, referred to as Witness C, to give evidence by audio-visual link from a remote location rather than attending the courtroom in person. All three accused opposed the application.
Witness C is the uncle of one of the accused, Mr Tuli. According to the evidence, Witness C had some involvement in the offence, including allowing his home to be used to store the murder weapon. His evidence primarily concerns admissions allegedly made by Mr Tuli before and after the shooting. He was described as an important prosecution witness.
The application was grounded in concerns about Witness C's safety, particularly from his own brother (referred to as "Mr Z," who is Mr Tuli's father) and from criminal associates of the accused. Witness C had expressed fear of being in the same room as Mr Z, who had a long criminal history including serious violence, weapons offences, and a 2018 conviction for attacking Witness C with a chainsaw.
Legal Issues
- Whether Witness C should be permitted to give evidence via audio-visual link under s 5B of the AVL Act.
- Whether a direction for AVL evidence would be unfair to any party to the proceeding (s 5B(2)(c)).
- Whether, given the accused's opposition, the prosecution had satisfied the Court that the direction was in the interests of the administration of justice (s 5B(3)).
- How the Court should weigh Witness C's safety concerns and the quality of his evidence against the accused's right to confront their accuser and the practical challenges of cross-examining a key witness via AVL.
- Whether the risk to Witness C was genuinely heightened by in-person attendance, given that the threat arising from his cooperation with police already existed and would persist regardless of the mode of evidence.
Decision
The judgment addressed the competing considerations in detail. The prosecution relied on the violent history between Mr Z and Witness C, including the chainsaw assault, Mr Z's extensive criminal record involving weapons and violence, and the involvement of all three accused with a criminal group called "Bloodline." Detective Sergeant Keegan, the officer in charge, gave evidence that the threat to Witness C was "particularly high" because giving evidence against a family member would be viewed as a serious betrayal within both the family and the broader Newcastle criminal milieu.
The prosecution conceded several significant points: the risk to Witness C already existed by virtue of his having provided statements to police; police could ensure Witness C's physical safety within the courtroom; and the risk of harm would not be eliminated by an AVL direction. The prosecution nonetheless argued that the risk was heightened by in-person attendance, that Witness C's capacity to give his "best evidence" would be compromised by fear, and that the administration of justice is not furthered by frightening witnesses such that their evidence suffers, relying on Wilson J's observation in R v AS [2023] NSWSC 885.
All three accused opposed the direction. Their submissions emphasised the general principle that an accused person should be able to face his accuser and that in-person evidence provides the jury with a more profound basis for assessing credibility. Counsel for Mr Raad stressed the logistical difficulties of cross-examining a witness via AVL when that cross-examination would involve detailed reference to multiple statements (which contained marked inconsistencies), telephone records, plans, and photographs. Counsel for Mr Tuli argued there was insufficient direct evidence from Witness C himself (such as an affidavit or statement) to establish the fear and safety concerns relied upon by the prosecution.
The full reasoning and ultimate determination on whether the direction was granted are contained in the balance of the judgment (the text of which was truncated). However, the published portion reveals the Court's careful engagement with the tension between witness safety, the quality of evidence, the right of confrontation, and the practical realities of a complex murder trial.
Orders Made
- The specific orders made by the Court are not contained in the truncated portion of the judgment available for this summary.
Key Takeaways
- Under s 5B(3) of the AVL Act, where a party opposes an audio-visual link direction, the burden falls on the applicant to satisfy the court that the direction is in the interests of the administration of justice.
- The Supreme Court treated the right of an accused to confront an accuser as a significant consideration weighing against an AVL direction, particularly where the witness's credibility was expected to be substantially challenged.
- Concessions by the prosecution that police could ensure courtroom safety, and that the threat to Witness C would persist regardless of the mode of evidence, were treated as relevant to the balancing exercise.
- Logistical difficulties associated with cross-examining a witness via AVL on multiple inconsistent statements and voluminous documents were raised as a factor potentially making the direction unfair to the accused under s 5B(2)(c).
- A witness's understandable fear of violence from a family member with a documented history of extreme violence (including the chainsaw assault) was recognised as a legitimate factor in the assessment, even where the risk predated the trial itself.
Legislation and Cases Referenced
Legislation:
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5B, 5B(2)(c), 5B(3), 5BAA
- Crimes Act 1900 (NSW)
Cases:
- Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60
- R v AS [2023] NSWSC 885
- R v Davis (2008) 1 AC 1128; [2008] UKHL 36
- R v Early (No 4) [2023] NSWSC 505
- R v Qaumi & Ors (AVL) [2015] NSWSC 1711
- R v Raad, Tuli and Latham Aznan (No 3) [2026] NSWSC 285