R v Ryan (No 2) [2020] NSWSC 1420

Supreme Court New South Wales

Medium Neutral Citation: R v Ryan (No 2) [2020] NSWSC 1420 Hearing dates: 1 October 2020 Date of orders: 1 October 2020 Decision date: 01 October 2020 Jurisdiction: Common Law Before: Button J Decision: Witness to give evidence remotely Catchwords: CRIMINAL LAW – evidence – application by consent for witness to appear via AVL – public health emergency considerations – significant distance for witness to travel by plane to give evidence in person – witness in high risk category Legislation Cited: Crimes Act 1900 (NSW), s 23A(6) Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5B, 22C(4) Category: Procedural and other rulings Parties: Regina (Crown) Paul Ryan (Accused) Representation: Counsel: B Campbell (Crown) J Watts (Accused)

Solicitors: Office of Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2018/347939

revised ex tempore Judgment

Application by consent for witness to appear via AVL 1. The question has arisen whether Mrs Moya Reid, sister of the deceased, should be permitted to give evidence by audio visual link (AVL) from Menindee, in the far west of New South Wales. It is to be recalled of course that we are sitting in the far north, if that is the right term, of the same State. 2. The matter has required resolution because, although in a previous judgment I have said that I would be content for the parties to determine which witnesses should and should not give evidence in person, my contentment was predicated on the understanding that all witnesses with whom there would be dispute would give evidence in the witness box in this court room. 3. That position has developed slightly, whereby it has become clear that Mrs Reid will be cross-examined to some degree adversely, not about the fatal events but about matters of background; in particular, about what she observed of the relationship between the accused and the deceased. 4. I think speaking generally it was not in the interest of justice until recently for witnesses who will be subject to dispute or an attack on their credit to give evidence by AVL, whether there is a judge or jury as the tribunal of fact, simply because of the difficulty in making an assessment of demeanour in those circumstances. 5. But here there are some compelling factors in my opinion why, in accordance with the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), it is in the interests of justice for that to take place. In particular, I refer to s 5B and the "temporary" s 22C(4) of that Act. 6. The first factor is of course that Australia for the past six months or so has been enduring a public health emergency. It is in remission perhaps, but it is by no means over. Indeed, the way this trial has been conducted is entirely reflective of that. 7. If the witness were to join us in person, in all likelihood she would need to fly from I think Broken Hill to Sydney, and thereafter Sydney to Ballina, or perhaps (taking judicial notice) Broken Hill to Adelaide, then Adelaide to Brisbane. It is not just a matter of the danger frankly of a person being confined in aeroplanes for some hours. It is also the exposure that one has to perhaps crowded airports, taxi stands et cetera, et cetera. 8. Secondly, this lady is in her late sixties, she has a heart condition, indeed she had a heart attack quite recently. Obviously, in terms of the pandemic she is in a high risk category. 9. Thirdly, she is the carer for her elderly husband who gave evidence by AVL yesterday. It is clear that he is not in the best of health. Obviously there are logistical problems with regard to his health if she is away from him for an extended period. 10. Fourthly, 30 years ago AVL assessments were unsatisfactory simply because of the sheer poor quality of the sound and vision. But I think one has to accept that that has changed. Both in this trial and in two other judge alone trials that I have conducted this year, the quality of the picture and the sound has been uniformly excellent. Also, of course, disruptive dropouts and feedback interference and so forth seem to be getting fewer and fewer as each day passes during the pandemic. 11. In other words, years ago I think that trying to assess the demeanour of someone on AVL was just impossible. But I think that the technology has moved on. 12. Fifthly, it is true that there will be a dispute about some of the evidence of this witness. But it is not in the category of, for example, identification evidence, where the witness is the crucial linchpin in the Crown case. Nor is it in the category of, let us say, an informer about whom one has to make a very real assessment of honesty or dishonesty. 13. The witness's evidence is undoubtedly important, shedding light as it is expected to do on the relationship between the accused and the deceased. But it is not central in that way. Indeed, this is a trial in which the homicide is accepted: it is a question of whether the appropriate verdict is murder or manslaughter. And indeed there is further agreement between the parties, as I understand it, in that it is accepted that there was some impairment. There is a dispute about its nature, its substantiality, and what I have called the normative question in s 23A(6) of the Crimes Act 1900 (NSW). 14. Sixthly and finally, it is very important to my approach that this application is made entirely by consent. No doubt, that is an advised, considered position undertaken by highly experienced defence counsel. I think that I am entitled to give that position significant weight. 15. In short, I am satisfied on balance, despite my initial reservations, that it would indeed in all the circumstances be in the interests of justice for Mrs Reid to give evidence remotely from the far west of New South Wales, and I so order.