[2023] NSWSC 571

R v Niguidula (No 7)

(1) Pursuant to s 5BAA of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) direct one police witness to give evidence to the court by audio visual link from a location in New South Wales other than the courtroom at which the court is sitting. (2) The witness subject to Order 1 is Sergeant Malcolm Elliott. I note that the Office of the Director of Public Prosecutions undertakes to pay all appropriate fees or charges as required.

Catchwords

CRIMINAL PROCEDURE – trial – murder – evidence – application for Crown witness to give evidence via AVL – not opposed

Legislation cited

Evidence (Audio and Audio Visual Links) Act 1998 (NSW) § 5B, 5BAA

Judgment

[1]
HIS HONOUR: In this matter the Crown makes application for a witness, Sergeant Malcolm Elliott, to give evidence in this trial by way of audio visual link. The power to make a direction that evidence be given by way of audio visual link is found in s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). Pursuant to s 5B(2):
[2]
The proposal is that the witness will give evidence from his local police station in an area proximate to what I assume to be his location. I am satisfied that the necessary facilities for him to give such evidence are available, it being commonplace that such facilities are provided within police stations. I am not satisfied that the evidence can be more conveniently given where the Court is sitting. I make that finding having particular regard to the circumstances surrounding the witness’ difficulty in travelling to Sydney to give evidence.
[3]
Having regard to the lack of opposition on the part of the accused, I am not satisfied that the direction would be unfair to any party in the proceedings. Further, having regard to the identity of the witness, I am satisfied that the witness will give evidence as required if called by AVL.
[4]
On that basis, I am satisfied that there is no prohibition to making the order as a result of the conditions in s 5B(2) of the Evidence (Audio and Audio Visual Links) Act. In all the circumstances, it is appropriate that the order be made.
[5]
I make the following orders:
1. (1)
  Pursuant to s 5BAA of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) direct one police witness to give evidence to the court by audio visual link from a location in New South Wales other than the courtroom at which the court is sitting.
2. (2)
  The witness subject to Order 1 is Sergeant Malcolm Elliott. I note that the Office of the Director of Public Prosecutions undertakes to pay all appropriate fees or charges as required.