R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529

R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529

The Court made AVL directions for the witnesses whose directions were unopposed or no longer opposed, because the statutory prohibitions in s 5B(2) were not engaged and the evidence, including confidential police material, supported the making of those directions. For Witness A, opposition was maintained and the onus lay on the DPP to satisfy the Court under s 5B(3) that an AVL direction was in the interests of the administration of justice. Although confidential material raised serious security, safety, resource and public interest considerations, Witness A's evidence was crucial to proof of guilt in a murder trial and his credibility and demeanour were central. The Court was not...

Jurisdiction
Australia
Judgment Date
07 November 2022
Procedural Posture
Criminal Proceedings; Pre Trial Application for Directions That Witnesses Give Evidence by Audio Visual Link / Procedural Ruling Before Judge Alone Murder Trial
Outcome
Application allowed in part: AVL directions made for eight witnesses and refused for Witness A.
Legal Topics
['evidence by Audio Visual Link' 'interests of the Administration of Justice' 'witness Security and Safety' 'assessment of Credibility and Demeanour' 'judge Alone Trial' 'murder Trial']
['criminal Law' 'evidence' 'criminal Procedure'] ['evidence by Audio Visual Link' 'interests of the Administration of Justice' 'witness Security and Safety' 'assessment of Credibility and Demeanour' 'judge Alone Trial' 'murder Trial']

Case Brief

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Procedural Posture

Criminal Proceedings; Pre Trial Application for Directions That Witnesses Give Evidence by Audio Visual Link / Procedural Ruling Before Judge Alone Murder Trial

Legal Issues

  1. 1 ['Whether directions should be made under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) for specified witnesses to give evidence by audio visual link.' 'Whether, where opposition was maintained to Witness A giving evidence by audio visual link, the DPP satisfied the Court that the direction was in the interests of the administration of justice.' "Whether the importance of Witness A's evidence, and the need to assess credibility and demeanour in a murder trial, outweighed security, safety, resource and public interest considerations relied on by the DPP and the Commissioner."]

Ratio Decidendi

The Court made AVL directions for the witnesses whose directions were unopposed or no longer opposed, because the statutory prohibitions in s 5B(2) were not engaged and the evidence, including confidential police material, supported the making of those directions. For Witness A, opposition was maintained and the onus lay on the DPP to satisfy the Court under s 5B(3) that an AVL direction was in the interests of the administration of justice. Although confidential material raised serious security, safety, resource and public interest considerations, Witness A's evidence was crucial to proof of guilt in a murder trial and his credibility and demeanour were central. The Court was not...

Court Disposition

Application allowed in part: AVL directions made for eight witnesses and refused for Witness A.

Orders

  • ['Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998, RS 1869816, RS 1546093, RS 1521670, RS 1777888, Under Cover Operative Aaron (UCO Aaron), Dr Sudipto Pal, Nicholas Walker and Gail Rogers (Muscat) are to give evidence by audio visual link.' 'The application for a direction under s 5B of the...