R v Early (No 4)

1. [1]

   Stanley Bruce Early, the accused, has pleaded not guilty to one count that he, on or about 13 January 1987, in Randwick in the State of New South Wales, did murder Raymond Frederick Keam.

2. [2]

   The trial commenced on 1 May 2023, with the jury being empanelled on 2 May 2023.

3. [3]

   At some time between midnight and 6 am on 13 January 1987, Mr Keam was assaulted. It is the Crown case that it was the accused who either assaulted Mr Keam, or else was part of a group who assaulted him, causing his death. At approximately 6:06 am, Mr Keam was found deceased in Alison Park, Randwick. There were scuff marks on his trouser legs just below the knees and dirt and stains on the t-shirt he was wearing. One of his trouser pockets was turned out and the only personal item he had on him was a small plastic comb. Mr Keam’s “Datsun 180B” was found parked on Francis Street, at the northern end of the park. Missing from Mr Keam’s possession were his keys.

4. [4]

   A post-mortem was completed following the death of Mr Keam. A review of the post-mortem and evidence was conducted by a forensic pathologist in 2021. It was determined that Mr Keam died due to a subarachnoid haemorrhage, most likely caused by an impact to the face, side of the head, or neck. Mr Keam was struck a number of times to the side of his face, right side of his neck, back, and mouth. It is likely that he then fell, causing further injuries to the back of his head. There were also significant blunt trauma injuries to his upper chest and sternum, causing a rib fracture. This fracture occurred before he died. The Crown allege that some of the injuries to his chest were consistent with being caused by the sole of a shoe.

5. [5]

   By way of Notice of Motion filed on 27 April 2023, the Crown sought orders that Barry Sutton and Margaret Sutton give evidence by audio-visual link (“AVL”) from a place other than the courtroom, namely from Bundaberg Court.

6. [6]

   The orders were sought pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (“the Act”). The orders were opposed. I determined that Margaret Sutton could give evidence by way of audio-visual link. It was conceded, on behalf of the accused, that this witness’s evidence was peripheral to the issues in dispute in the trial. There will be no dispute, for instance, that the accused did travel to Bundaberg in the days following 13 January 1987 and attended his brother’s premises.

7. [7]

   This judgment, therefore, is only concerned with the application that Barry Sutton give evidence by audio-visual link.

8. [8]

   It should be noted that the Crown has made applications for several witnesses to give evidence by way of audio-visual link, either because they are interstate or due to failing health. Those orders were granted.

9. [9]

   In support of the Notice of Motion, the Crown reads the affidavit of Alice Crossing, the solicitor with carriage of the matter from the Office of the Director of Public Prosecutions (“ODPP”). Ms Crossing deposes that the witness resides interstate in Bundaberg, Queensland. The witness’s preference is to give evidence via AVL. He does not wish to travel to Sydney. Relevantly, the following material is annexed to Ms Crossing’s affidavit:

10. [10]

    Ms Crossing also deposed that Bundaberg is approximately 1,270 kilometres from Sydney. The travel options include: driving, with an approximate time of 13 hours and 40 minutes; or flying, with a total flight time of 2 hours and 30 minutes.

11. [11]

    Enquiries have revealed that a remote witness room and AVL facilities are available at Bundaberg Courthouse.

12. [12]

    The statement of Detective Tam, dated 26 April 2023, contains information provided by Dr Kerswill concerning Barry Sutton’s health, and the potential adverse impact on his health if he was required to travel. The information provided by Dr Kerswill is, on its face, inconsistent.

13. [13]

    Detective Tam in his statement dated 26 April 2023, sets out the contents of an email received from Dr Kerswill’s Practice Manager, Ms Stevens, which relays information obtained from Dr Kerswill: see at [6]. The email states:

14. [14]

    That email was received at 1:58pm on 26 April 2023. Detective Tam contacted Ms Stevens for clarification. He was eventually able to speak to Dr Kerswill at 4:24pm on the same day. During that conversation, Dr Kerswill conveyed the following information:

15. [15]

    Given the apparent inconsistency in the information obtained from Dr Kerswill, a further statement was provided by Detective Tam, dated 4 May 2023, which attached a letter prepared by Dr Kerswill, dated 2 May 2023. Dr Kerswill provided the following information:

16. [16]

    Dr Kerswill was required for cross-examination. He was called and cross-examined on Monday 8 May 2023.

17. [17]

    Dr Kerswill gave evidence as follows:

18. [18]

    In cross-examination, Dr Kerswill was asked:

19. [19]

    He was then asked by me:

20. [20]

    In essence Dr Kerswill’s position was that given the issues, the common sense approach is to allow Mr Sutton to give evidence by AVL.

Submissions

1. [21]

   The Crown submitted that the court would be satisfied that there are facilities, being a remote witness room at Bundaberg Courthouse, which will be available during the course of the trial. Barry Sutton’s medical conditions, and his fear of flying, militate against requiring him to attend in person to give evidence. In that regard, the Crown relies upon the evidence of Dr Kerswill.

2. [22]

   The Crown submitted that it is in the interests of the administration of justice for the court to make a direction that Barry Sutton give evidence by way of audio-visual link. His evidence is important and relevant. The facility proposed has previously been used for witnesses giving evidence in interstate proceedings which is within a court complex. Mr Sutton is not well travelled. He has only flown once and is anxious about travelling to Sydney.

3. [23]

   On behalf of the accused, Mr Clark submitted that the medical evidence, when carefully considered, does not support the contention that Barry Sutton is not fit to travel to Sydney.

4. [24]

   The evidence of Barry Sutton is relied upon by the Crown as an admission made by the accused. Barry Sutton is the brother of the accused. His credibility and reliability will be hotly contested. The witness has made a number of statements in addition to a recorded interview.

5. [25]

   Given the extremely serious nature of the allegation, it is submitted that the accused is entitled to ensure that the jury is in the best position possible to observe the demeanour of Barry Sutton to properly assess his credibility and reliability.

Consideration

1. [26]

   A “common sense approach” is not the relevant consideration in determining this application. Relevantly, s 5B(2) of the Act provides:

2. [27]

   Pursuant to s 5B(3) of the Act, “the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so”. In considering an application, the court should consider whether the preconditions under s 5B(2) of the Act are satisfied. It is only if they are satisfied that the court considers s 5B(3) of the Act: see R v Ngo (2003) 47 NSWLR 55; [2003] NSWCCA 82 (“Ngo”) at [107].

3. [28]

   In Ngo, the court stated at [108]:

4. [29]

   In KN v R (2017) NSWLR 767; [2017] NSWCCA 249 (“KN”), an appeal was brought by the applicant against the trial judge’s decision to grant Crown applications for witnesses to give evidence via AVL, pursuant to s 5B of the Act. Relevantly, at [66]–[67], the court stated:

5. [30]

   The increased use of AVL to facilitate witnesses giving evidence reflects a willingness to adopt technological mechanisms to reduce cost and inconvenience. However, such considerations do not replace the fundamental principle that an accused is entitled to a fair trial. While it is not in every case that constraining a party to cross-examine the witness by audio-video link will involve unfairness, the circumstances of a particular case may result in a determination that it is not in the interests of the administration of justice that a witness give evidence remotely.

6. [31]

   In Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250 (“Antov”), Bell P (as his Honour then was, and with whom Bathurst CJ and Payne JA agreed) said at [50]:

7. [32]

   The tension between that decision and the decision of the Court of Criminal Appeal in KN was noted by Hamill J in R v Abdaly; R v Hooseinishoja (No 4) [2022] NSWSC 1529, where his Honour said (after referring to KN at [67]–[68]):

8. [33]

   The courts have increasingly utilised AVL facilities in proceedings involving criminal allegations, particularly during the COVID-19 pandemic which resulted in courts having to respond rapidly to ensure, as far as possible, that cases continue to be heard. During that period, some applications and hearings were conducted via AVL, although, for some of that period, jury trials were suspended. Legislation was introduced mandating that certain proceedings be conducted via AVL unless the court ordered otherwise. The pandemic forced courts to rely on technology more than ever before.

9. [34]

   It is important, however, to bear in mind that the increased recourse to AVL facilities was a dramatic response to an unprecedented situation. The courts had to balance the need to continue to hear cases and dispense justice in a timely fashion, with avoiding the health risks posed by the pandemic. As restrictions eased, courts conducting criminal trials and hearings resumed face-to-face operations. There is no doubt that there has been an increased use of AVL facilities post the pandemic restrictions.

10. [35]

    That does not mean, however, that cost efficiency and the desire to reduce inconvenience eclipse the fundamental right of an accused to a fair trial. In some cases, a fair trial will require the attendance of a witness in court to give evidence in person. That is because in some cases the evidence is crucial to the Crown case; the witness may have given several accounts, not all consistent; cross-examination may be impeded if the witness were to give evidence by AVL; and to the extent the demeanour is relevant to an assessment of credibility and reliability, attendance in person may provide a jury with a better opportunity to assess those factors. Each case will depend upon its particular circumstances.

11. [36]

    In Rooney v AGL Energy Limited (No 2) [2020] FCA 942, Snaden J stated at [18]:

12. [37]

    These remarks were made in the context of a civil case. In a criminal case, particularly where the allegation is a serious one resulting, upon conviction, in the loss of liberty of the individual, it is all the more necessary to ensure that the particular circumstances of the case ensure that the entitlement to a fair trial is not too easily compromised for the sake of cost savings and convenience.

13. [38]

    In the present case, Barry Sutton is an important Crown witness. His evidence is being relied upon by the Crown as an admission by the accused. When first interviewed by police on 4 February 1987, he made a statement in which he set out his contact with the accused in January of that year. He told police that the accused visited him in Bundaberg on 14 January 1987. They talked and caught up with family news and described the interactions as “nothing important”. The witness told police that the accused had travelled to Queensland to inspect a new unit that he had bought on the Gold Coast. The brothers went to the pub a few times and enjoyed a barbecue for Barry Sutton’s birthday. The accused left without notice.

14. [39]

    It was not until May 2021, when a further statement was taken from Barry Sutton, that he told police that on the occasion the accused visited him in Bundaberg he told him that he had “gotten into a blue with a bloke in the park”. The accused also said that he had travelled to Bundaberg because he thought that “the coppers might have been after him”.

15. [40]

    The Crown not only relies upon this evidence as an admission but also as evidence of flight, demonstrating consciousness of guilt. By the time of the second statement, the brothers had a falling out. Barry Sutton provided an account to the police that approximately six months after the accused had visited him in Bundaberg in 1987, he received a call from the accused during which they had an argument.

16. [41]

    The proposed evidence is an important plank of the Crown case. It is hotly contested. Although Barry Sutton suffers from a number of medical conditions and requiring him to travel to Sydney will involve a deal of inconvenience, Dr Kerswill’s ultimate evidence is that the witness is fit to travel to Sydney. While I am satisfied that the necessary facilities are available at Bundaberg Courthouse, in this case, I am not persuaded that it is in the interests of the administration of justice for the court to make a direction that Barry Sutton give evidence by way of audio-visual link.

17. [42]

    Accordingly, I refuse the application.