Claimant Allowed to Appear Via AVL During Serious Criminal Trial

The claimant, charged with serious offences including murder, was granted permission to appear via audio visual link (AVL) during his trial due to health issues and welfare considerations. The court considered the claimant's age, diabetes, and past experiences of motion sickness, concluding that AVL would facilitate a fair trial and efficient use of resources.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] (No.26) [2018] NSWSC 1079 Hearing dates: 5 July 2018, 6 July 2018 Date of orders: 13 July 2018 Decision date: 13 July 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Direct that until further order, pursuant to s 5BA(3) of the Evidence (Audio and Audio Visual Links) Act 1998, [NAME] is not required to appear in court in person for the remainder of his trial, which is due to recommence on 16 July 2018. (2) Direct that, until further order, [NAME] be present at the trial by audio visual link from the place at which he is held in custody, the [COMPANY], [NAME]. (3) Liberty to apply on short notice to vacate or vary these orders. Catchwords: CRIMINAL PROCEDURE – trial involving serious indictable offences including four counts of murder – application by [NAME] to appear in court via audio visual link rather than in person for the duration of his trial – power to give such a direction under the Evidence (Audio and Audio Visual Links) Act 1998, s 5BA – consent of [NAME] and the Crown – where trial is estimated to last for six months – where health issues experienced by [NAME] have previously been exacerbated by transport from custody to court – consideration of principles relating to [NAME]'s right to be present at trial Legislation Cited: Criminal Procedure Act 1986 Evidence (Audio and Audio Visual Links) Act 1998 Evidence (Audio and Audio Visual Links) Amendment Act 2001 Cases Cited: Boros v O'Keefe [2017] VSC 560 Eastman v R (1997) 76 FCR 9 Jamal v R [2012] NSWCCA 198; (2012) 223 [NAME] R 585 Lawrence v R [1933] [NAME] 699 R v Abrahams (1895) 21 VLR 343 R v Bonacci [2015] VSC 121 R v Cornwell (1972) 2 NSWLR 1 R v [NAME] [2017] ACTSC 366 R v Jones [1998] SASC 7021; (1998) 72 SASR 281 R v [NAME] & Danielson [1983] 2 NSWLR 733 R v Mokbel (2010) 30 [NAME] 115 R v O'Neill (2002) 81 SASR 359 R v Rigney (1988) 48 SASR 72 R v [NAME] (No 5) (2007) 16 [NAME] 360 R v Vernell [1953] VLR 590 R v [NAME] (No.2) [2017] NSWSC 1225 R v [NAME] (No.5) [2018] NSWSC 70 R v [NAME] (No.6) [2018] NSWSC 234 R v [NAME] (No.20) [2018] NSWSC 656 R v [NAME] (No.21) [2018] NSWSC 654 Williams v R [2012] NSWCCA 286; (2012) 229 [NAME] R 67 Texts Cited: Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 June 2001 Category: Procedural and other rulings Parties: The [NAME] ([NAME]) Representation: Counsel: [redacted] [NAME] / [NAME] ([NAME])

Solicitors: [redacted] [NAME] ([NAME]) File Number(s): 2015/222068 Publication restriction: Not to be published until further order of the Court - 13 July 2018. Publication restriction lifted 6 February 2020.

Judgment 1. On 5 July 2018, the lawyers for [NAME], orally moved the Court for such directions as may be necessary to permit [NAME] to appear for the duration of his trial by way of audio visual link ("AVL"), rather than appearing in person. 2. [NAME] sought such a direction on the basis that he anticipated that his health and ability to concentrate on the proceedings would be adversely affected by the physical demands of travelling between Court and the Metropolitan Remand and Resource Centre ("[NAME]") in the [NAME] each day. As well, if required to travel to Court, [NAME] would be unable to continue with daily visits to the medical clinic at the [NAME] for the monitoring of his diabetes. It may be noted that [NAME] is presently 71 years of age.

3. It was accepted by both the Crown and the lawyers for [NAME] that the Court possessed the power to make a direction that [NAME] appear at trial by AVL rather than in person pursuant to s 5BA of the Evidence (Audio and Audio Visual) Act 1998 ("the AVL Act").

4. The lawyers for [NAME], upon a request from the Court, provided a statement signed by [NAME] acknowledging that after receiving legal advice, he knowingly and voluntarily consented to waive his right to appear before the Court in person for the duration of his trial, and sought a direction that he could instead be present by AVL.

5. The Crown did not oppose the Court making such a direction.

Background 1. In March 2017, [NAME] was arraigned on an indictment containing 24 counts, including four counts of murder. The particulars of these offences are comprehensively set out in R v [NAME] (No.2) [2017] NSWSC 1225. 2. [NAME] has been held in custody since his arrest on 29 July 2015. His trial is estimated to occur over a period of six months.

3. For a variety of reasons, and on the application of [NAME], the commencement of the trial has twice been adjourned from an original commencement date of 19 February 2018. The bases for these adjournments are to be found in R v [NAME] (No.5) [2018] NSWSC 70 and R v [NAME] (No.20) [2018] NSWSC 656.

4. On 11 May 2018, I ordered that [NAME] was to be tried by a judge alone. That order was made pursuant to s 132(1) of the Criminal Procedure Act 1986 on the application of [NAME] and with the consent of the Crown: see R v [NAME] (No.21) [2018] NSWSC 654.

5. The present application was made after the formal commencement of the trial, at which time [NAME] was formally arraigned in person and entered pleas of not guilty to each count on the Indictment. On 15 May 2018, the Crown delivered its opening address. The lawyer for [NAME] responded with a brief opening on [NAME]'s behalf. [ADDRESS] was then adjourned for two months before the commencement of oral evidence.

6. As matters presently stand, the Crown has indicated an intention to adduce evidence from over 270 witnesses, although not all of these witnesses will attend in person. The current estimate of the length of the trial is about six months. [ADDRESS] will sit, exigencies aside, for five days each week.

Submissions of [NAME]

1. The lawyers for [NAME] pointed to several matters in support of his application to be present by AVL rather than physically attend Court. These were: 1. that if [NAME] were required to travel to Court each day, there would no opportunity for him to attend the [NAME] medical clinic for monitoring of his blood glucose levels as part of the ongoing management of his diabetes. [NAME] presently attends the clinic each morning between 8:30am and 9am for this purpose, but this would not be possible were he required to travel from Silverwater to Court; 2. the tendency of [NAME] to suffer motion sickness when travelling in the back of Corrective Services vans, particularly in light of a previous incident of becoming ill whilst being transported to Cessnock Correctional Complex; 3. [NAME]'s belief that the process of waking early each day and travelling to Court would exhaust him, ultimately impeding his ability to concentrate on the proceedings; 4. that appearing over AVL would free up time that would otherwise be spent travelling and enable [NAME] to have more opportunity to examine the Crown E-Brief, which is loaded onto a laptop in his possession (see R v [NAME] (No.6) [2018] NSWSC 234). [NAME] would then be better prepared to provide instructions to his lawyers and participate in his defence; and 5. there would be no impediment to [NAME] having access to his lawyers, as the ad hoc practice of [NAME]'s lawyers liaising with him over the AVL during adjournment periods, which has occurred throughout the pre-trial stage, could continue.

Crown Submissions 1. The Crown consented to [NAME]'s application in principle. However, it was submitted that some practical or technical difficulties may conceivably arise over the course of the trial.

Statutory Framework 1. Section 3A(1) of the AVL Act provides that a requirement that a person appear (or be present) before a court is taken to be satisfied if the person appears before the court by way of AVL, in accordance with the specifications of that Act.

2. Section 5 preserves the inherent jurisdiction of the Court to generally control the conduct of proceedings and safeguard the right of [NAME] to a fair trial. Section 5 also notes that the AVL Act is not intended to exclude or limit other laws in NSW or another participating State that make provision for the taking of evidence or making of submissions.

3. Part 1B of the AVL Act contains the operative provisions relevant to this application.

4. Section 5BA establishes a prima facie presumption that an [NAME] charged with an offence before a NSW court in certain criminal proceedings must appear physically before that court, unless otherwise directed. This section provides for circumstances when a court may give a direction that [NAME] instead appear by AVL. It is in the following form: "5BA [NAME] to appear physically in physical appearance proceedings (1) An [NAME] who is charged with an offence and is required to appear (or be brought or be present) before a NSW court in physical appearance proceedings concerning the offence must, unless the court otherwise directs, appear physically before the court. Note. [NAME] and physical appearance proceedings are defined in section 3. (2) Subsection (1) does not apply to any bail proceedings that: ... (3) Subsection (1) does not apply if the parties to the proceeding consent to the [NAME] appearing before the court by audio visual link from any place within New South Wales at which the [NAME] is in custody other than the courtroom or place where the court is sitting. (4) The court may make a direction under subsection (1) on its own motion or on the application of any party to the proceeding or of any person on behalf of a designated government agency. (5) The court may make such a direction only if it is satisfied that it is in the interests of the administration of justice for the [NAME] to appear before the court by audio visual link from a place within New South Wales at which the person is in custody other than the courtroom or place where the court is sitting. (6) Without limiting the factors that the court may take into account in determining whether it is in the interests of the administration of justice to make a direction under subsection (1), the court must take into account such of the following factors as are relevant in the circumstances of the case: (a) …, …, (f) safety and welfare considerations in transporting the [NAME] to the courtroom or place where the court is sitting, (g) the efficient use of available judicial and administrative resources, (h) any other relevant matter raised by a party to the proceeding or other applicant for the making of the direction. …."

1. The phrases "[NAME]" and "physical appearance proceedings" are defined in s 3 of the AVL Act. "[NAME]" includes, relevantly, a person who is being held in custody in a correctional centre, while "physical appearance proceedings" includes any trial (including an arraignment on the day appointed for the trial) or hearing of charges. It is clear that s 5BA therefore may apply to [NAME].

2. The intended effect of that provision is made clear in the Second Reading Speech to the Evidence (Audio and Audio Visual Links) Amendment Act 2001, which inserted s 5BA into the AVL Act. It establishes a general presumption of physical attendance in specified criminal proceedings so as to "protect the rights of [NAME] or defendant in criminal proceedings who may be in danger of losing his or her liberty". This presumption in favour of the physical attendance of [NAME]: "can be displaced only with the consent of the parties, or if the court is satisfied that it is in the interests of justice." (emphasis added)

Legal Principles 1. It is well-settled at common law that, as a matter of ordinary course, a trial for an indictable offence should be conducted in the presence of [NAME]: Lawrence v R [1933] [NAME] 699, 708; R v Abrahams (1895) 21 VLR 343, 347-8. 2. [NAME] is ordinarily entitled to be present at every stage of the trial to hear and test the prosecution evidence and to present his or her own case: Jamal v R [2012] NSWCCA 198; (2012) 223 [NAME] R 585 at [35].

3. Atkin LJ, giving the opinion of the Privy Council in Lawrence, said at 708: "It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of [NAME]: and for this purpose trial means the whole of the proceedings, including sentence."

1. However, as was noted in Lawrence, that principle is not an inflexible rule, and it does admit of certain exceptions. The first is that a judge or magistrate may remove [NAME] from the courtroom if [NAME], by his disruptive conduct, renders an orderly hearing impossible. This will constitute a waiver of the right to be physically present: R v Vernell [1953] VLR 590; Lawrence; Boros v O'Keefe [2017] VSC 560; Eastman v R (1997) 76 FCR 9; R v Cornwell (1972) 2 NSWLR 1.

2. In Eastman, the Full Federal Court upheld the decision of the trial judge to remove [NAME] to a separate room with an AVL connection because of his persistent disruptive behaviour.

3. The second recognised exception is where [NAME] absconds from custody, or flees in breach of bail, before or during his or her trial.

4. It was said by the Court of Criminal Appeal in R v [NAME] & Danielson [1983] 2 NSWLR 733 (Begg CJ at CL, Lee and Cantor JJ) that in this circumstance [NAME] will have waived his right to be present. At 739, the Court said: "[NAME] cannot be heard to say that he has been denied his right to be present at his trial when he voluntarily abandons that right… by escaping from lawful custody".

1. In such a case, the criminal proceedings have continued against [NAME] in his or her absence: see [NAME] & Danielson; R v Jones [1998] SASC 7021; (1998) 72 SASR 281 at 294-295; R v O'Neill (2002) 81 SASR 359, 367; R v [NAME] [2017] ACTSC 366 at [9]-[12]; R v Mokbel (2010) 30 [NAME] 115, [42]; R v [NAME] (No 5) (2007) 16 [NAME] 360, 365-6; Williams v R [2012] NSWCCA 286 at [92]-[97]; (2012) 229 [NAME] R 67 at [92] to [95]; R v Rigney (1988) 48 SASR 72; R v Bonacci [2015] VSC 121 at [54]-[66].

2. In this matter, [NAME] will be present in Court by virtue of the benefits of modern technology, and has not demonstrated any intention to waive his right to participate in his trial. He has merely waived his right to be present in the physical sense.

3. The ability of the parties to consent to [NAME] appearing before the Court by AVL pursuant to s 5BA(3) of the AVL Act is therefore an additional (statutory) exception to the general common law rule necessitating the physical attendance of [NAME] at trial.

4. Further, it appears to me that the Court's power under s 5BA(4) of the AVL Act to make a direction, absent consent of [NAME] or the Crown, that [NAME] appear before the Court via AVL if to do so would be "in the interests of the administration of justice", complements the common law exceptions to that general principle requiring [NAME]'s physical attendance.

Discernment 1. As there has been consent to [NAME] appearing at trial by AVL from both the [NAME], there is no requirement that [NAME] appear physically at trial: AVL Act s 5BA(3).

2. If there had not been consent from the Crown in this matter, I would have been required to consider whether it was in the interests of the administration of justice that [NAME] appear by AVL, rather than in person: s 5BA(5). There are a number of reasons why I am satisfied that it is in the interests of the administration of justice to make the direction sought by [NAME]. These will be briefly noted.

3. First, it is of critical significance that [NAME]'s trial is to be conducted by a judge alone, rather than as a jury trial. If this had been a jury trial, it would have been difficult for the Court to conclude that the interests of the administration of justice would be furthered by [NAME] not appearing in person. The capacity of the jurors to assess the demeanour of [NAME] throughout the trial would be severely impacted. Subject to one qualification, which I will soon address, this issue is of lesser importance in a judge alone trial.

4. Secondly, in considering the relevant factors identified in s 5BA(6), it is clear that the safety and welfare of [NAME] may well be detrimentally affected by being transported to Court each day for a period of six months or longer: s 5BA(6)(f). Appearing by AVL will undoubtedly be less taxing on the physical condition of [NAME], and therefore reduce the likelihood that the fair and proper administration of justice would be impeded by any interruption of his trial by reason of illness or incapacity. This factor is particularly pertinent by virtue of [NAME]'s age, his diagnosed condition of diabetes and his previous episode of being ill due to motion intolerance in the back of the Corrective Services van.

5. Thirdly, this course provides [NAME] with more time and opportunity to read and refer to the material in the Crown E-Brief, before, during and after Court and thereby be familiar with the evidence to be adduced at the trial. This is a proper matter to be considered pursuant to s 5BA(6)(h).

6. Fourthly, there are considerable practical and administrative advantages which may be gained from [NAME] not being required to be transported to Court by Corrective Services each day, in light of the significant length of his trial. This direction would take into account the most efficient use of available judicial and administrative resources, as is required to be considered under s 5BA(6)(g). Of course, the reduced burden on Corrective Services would not weigh heavily in my determination if [NAME] himself had not moved the Court for the direction that he could appear by AVL. This is but one factor that weighs in favour of making the order sought.

7. Due to the consent of the [NAME], the Court will make the order sought by [NAME] that he be present by AVL rather than in person. It is also in the interests of the administration of justice for this to occur.

Cautions 1. However, this order will be subject to two caveats, which were raised at the hearing in exchanges between the parties and the Bench.

2. The first is that if [NAME] wishes to give evidence, the issue of his continued presence at the trial by way of AVL would need to be revisited. [NAME] would likely be required to appear physically, as the determination of matters of credit may be materially affected observations of the demeanour of [NAME] while he is giving evidence in person. However, this issue is unlikely to arise until significantly later in the course of the trial, when further consideration will need to be given to all relevant issues at that time.

3. The second is that the order must be made conditional upon [NAME]'s appearance by AVL working satisfactorily and without interruption throughout the course of the trial. If the AVL link for any reason became inadequate because of technical failures, or if any witness needed to appear by AVL and a "split-screen" was not able to be satisfactorily achieved, it is clear that the Court would need to revisit the orders which are to be made.

4. None of these matters provide any reason to refrain from making the orders. Rather, they indicate that ongoing attention must be paid to the question of [NAME] being present by AVL so as to prevent any unfairness of the trial. To enable these or any other matters to be raised, the parties have liberty to apply to the Court on short notice to vacate or vary these orders.

Orders 1. I make the following orders:

1. Direct that until further order, pursuant to s 5BA(3) of the Evidence (Audio and Audio Visual Links) Act 1998, [NAME] is not required to appear in court in person for the remainder of his trial, which is due to recommence on 16 July 2018.

2. Direct that, until further order, [NAME] be present at the trial by audio visual link from the place at which he is held in custody, the [COMPANY], [NAME].

3. Liberty to apply on short notice to vacate or vary these orders. ******

Amendments 06 February 2020 - Non-publication order made by the Court on 13 July 2018 is revoked. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2020