KN v R [2017] NSWCCA 249

KN v R [2017] NSWCCA 249 · Read the judgment on AustLII

Catchwords: Evidence by video link – use of witness’ own computer and software, at home – discretion of trial judge

The CCA has determined that it is within a trial judge’s discretion to order that audio visual link (‘AVL’) evidence can be given from the complainant’s home, using their own computer and software.

The applicant was on trial for sexual assault. On the first morning of trial, the Crown applied for two witnesses (the complainant and a complaint witness) to give evidence via AVL. They were respectively in Germany and Austria. Uncommonly, it was proposed that rather than being flown to Australia or giving evidence from an AVL suite booked in their own countries, they would give their evidence from home, using their own computers and using a piece of software called ‘Jabber’ (readers might be familiar with FaceTime or Skype video calling; Jabber is essentially the same thing). The accused responded to the Crown’s AVL application by applying to adjourn the trial, upon bases including the assertion that the complainant giving evidence in this way was prejudicial. The trial judge determined that the evidence could be given as sought by the Crown, and then refused the accused’s adjournment application.

The applicant appealed to the CCA. Strictly speaking, this appeal was only an application for a temporary stay of the trial while the applicant advanced an application seeking leave to appeal the substantive decision that the witnesses could give evidence via AVL. This led to a point which comes up frequently in interlocutory criminal appeals (which are limited in their scope): is a decision that the evidence could be given by AVL an ‘order’? The answer is that it is not (see [57]), but the main topic of this summary is whether, more generally, the order allowing AVL evidence to be given this way was permissible. The trial judge had noted that the complainant had a right to give evidence from outside the courtroom (which is true for all sexual assault complainants, and most other vulnerable witnesses). Alternatively basically the same order could be made under the Evidence (Audio and Audio Visual Links) Act 1998 s5B.

The CCA (Beasley ACJ, Walton and N Adams JJ, in a unanimous judgment) found that the particular technology used for AVL evidence is within the discretion of the trial judge (at [74]). They observed that it has sometimes been acknowledged that where the credibility of a witness is in issue, that will be relevant to the decision whether to allow AVL evidence – but there are numerous decisions where it has been held that credibility can be adequately assessed by AVL (at [67]-[68]). Ultimately, subject to the requirements of the legislation, the decision to permit evidence to be given via AVL is a matter for the primary judge’s discretion in the circumstances of a particular case (at [66]).

In the particular circumstances of this case, the only decision under review in the CCA was the adjournment application (because that is an interlocutory ‘order’ which can be appealed), and the CCA determined that the trial judge had not erred in refusing that application (at [75]). Accordingly the appeal was dismissed.

It might be noted that throughout this judgment the CCA acknowledged that each case will vary. Under those circumstances, issues such as the fact that the complainant will be unsupervised by a court officer (discussed at [72] to [74]) may loom larger in some applications than others, given that some trials (and some trial judges) may be more affected by the prospect of being unable to guarantee that the witness is not looking at extraneous material, or being influenced by an unseen person.

Readers will be disappointed to learn that there was no discussion of evidence via Twitter.