R v Warwick (No.26) [2018] NSWSC 1079

R v Warwick (No.26) [2018] NSWSC 1079

Because both the Accused and the Crown consented to the Accused appearing at trial by audio visual link, s 5BA(3) of the Evidence (Audio and Audio Visual Links) Act 1998 meant there was no requirement for him to appear physically. In any event, the direction was in the interests of the administration of justice because the trial was judge-alone, daily transport over an estimated six-month trial could detrimentally affect the Accused's health and welfare, AVL would assist his ability to review the Crown E-Brief and participate in his defence, and it would promote practical and administrative efficiency without unfairness, subject to liberty to revisit the orders if necessary.

Jurisdiction
Australia
Judgment Date
13 July 2018
Procedural Posture
Criminal Trial Involving Serious Indictable Offences Including Four Counts of Murder / Application by the Accused During Trial to Appear by Audio Visual Link Rather Than in Person for the Remainder of the Trial
Outcome
Application granted; directions made permitting the Accused to be present at the trial by audio visual link rather than in person, until further order.
Legal Topics
['audio Visual Link Appearance by Accused Detainee' 'right of Accused to Be Present at Trial' 'judge Alone Trial' 'interests of the Administration of Justice']
['criminal Procedure' 'evidence and Procedure'] ['audio Visual Link Appearance by Accused Detainee' 'right of Accused to Be Present at Trial' 'judge Alone Trial' 'interests of the Administration of Justice']

Case Brief

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Procedural Posture

Criminal Trial Involving Serious Indictable Offences Including Four Counts of Murder / Application by the Accused During Trial to Appear by Audio Visual Link Rather Than in Person for the Remainder of the Trial

Legal Issues

  1. 1 ['Whether the Court should direct that the Accused is not required to appear in court in person for the remainder of his trial and may instead be present by audio visual link from custody.' 'Whether, in light of the consent of the Accused and the Crown, s 5BA(3) of the Evidence (Audio and Audio Visual Links) Act 1998 displaced the requirement for the Accused to appear physically.' "Whether the direction was in the interests of the administration of justice having regard to the Accused's health, the length of the trial, access to the Crown E-Brief, and practical and administrative considerations."]

Ratio Decidendi

Because both the Accused and the Crown consented to the Accused appearing at trial by audio visual link, s 5BA(3) of the Evidence (Audio and Audio Visual Links) Act 1998 meant there was no requirement for him to appear physically. In any event, the direction was in the interests of the administration of justice because the trial was judge-alone, daily transport over an estimated six-month trial could detrimentally affect the Accused's health and welfare, AVL would assist his ability to review the Crown E-Brief and participate in his defence, and it would promote practical and administrative efficiency without unfairness, subject to liberty to revisit the orders if necessary.

Court Disposition

Application granted; directions made permitting the Accused to be present at the trial by audio visual link rather than in person, until further order.

Orders

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