R v Knight (No 1) [2023] NSWSC 195

R v Knight (No 1) [2023] NSWSC 195

The statutory presumption that the applicant appear by audio-visual link was not displaced. Although the Court acknowledged the importance of Indigenous cultural values and the views of the deceased's sisters, the sentencing proceedings would be conducted in the usual way and not under a restorative justice model, and physical attendance was not shown to better fulfil the purposes of sentencing. The applicant's physical transfer would involve onerous custody and transport conditions and impose a significant burden on local police resources. It was therefore not in the interests of the administration of justice to require physical appearance.

Jurisdiction
Australia
Judgment Date
08 March 2023
Procedural Posture
Criminal Procedural Ruling / Notice of Motion Seeking Appearance by Audio Visual Link for Sentencing Proceedings
Outcome
Application granted.
Legal Topics
['appearance by Audio Visual Link' 'accused Detainee' 'interests of the Administration of Justice' 'indigenous Cultural Values and Principles' 'physical Appearance at Sentence']
['criminal Law' 'criminal Procedure' 'sentencing' 'evidence and Audio Visual Links'] ['appearance by Audio Visual Link' 'accused Detainee' 'interests of the Administration of Justice' 'indigenous Cultural Values and Principles' 'physical Appearance at Sentence']

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Procedural Posture

Criminal Procedural Ruling / Notice of Motion Seeking Appearance by Audio Visual Link for Sentencing Proceedings

Legal Issues

  1. 1 ['Whether the prior direction that Kenneth Knight appear in person for sentence should be revoked under s 20F of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).' 'Whether, despite the statutory presumption in s 5BB(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), it was in the interests of the administration of justice for the applicant to appear physically before the Court for sentencing.' "Whether the Crown's reliance on Indigenous cultural values and principles, including the view that the applicant should be sentenced in person and on country, displaced the presumption in favour of appearance by audio-visual link."]

Ratio Decidendi

The statutory presumption that the applicant appear by audio-visual link was not displaced. Although the Court acknowledged the importance of Indigenous cultural values and the views of the deceased's sisters, the sentencing proceedings would be conducted in the usual way and not under a restorative justice model, and physical attendance was not shown to better fulfil the purposes of sentencing. The applicant's physical transfer would involve onerous custody and transport conditions and impose a significant burden on local police resources. It was therefore not in the interests of the administration of justice to require physical appearance.

Court Disposition

Application granted.

Orders

  • ['Pursuant to s 20F of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the direction that Kenneth Knight appear in-person at the Supreme Court of New South Wales at Bourke for Sentence on 30 March 2023 and 31 March 2023 is revoked.' "A warrant is issued for Kenneth Knight's appearance at the Supreme...