Supreme Court New South Wales Medium Neutral Citation: R v Dawson [2022] NSWSC 759 Hearing dates: 08 June 2022 Date of orders: 08 June 2022 Decision date: 08 June 2022 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Refuse application to take evidence by audio visual link. Catchwords: CRIMINAL LAW – murder trial – application to take evidence by audio visual link – whether witness should be required to attend court personally Category: Procedural rulings Parties: Regina (Crown) Christopher Michael Dawson (Accused) Representation: Counsel: C M Everson SC and E Blizard (Crown) P David (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Greg Walsh & Co Solicitors (Accused) File Number(s): 2018/372527 Publication restriction: Nil EX TEMPORE Judgment 1. HIS HONOUR: The Crown has foreshadowed that it proposes to call Robert Silkman to give evidence in these proceedings. Mr Silkman's name has been on a list of proposed witnesses and no objection has been taken to the fact that he is to be called. 2. The Crown today filed an application to take his evidence by audio visual link from a police station in the suburbs of Sydney. That application was supported by an affidavit sworn by Jessica Pelliccione today which annexes a copy of a medical certificate dated 6 June 2022 provided by the South Western Sydney Local Health District and signed by a doctor whose name and qualifications it is unnecessary presently to refer to. 3. Also annexed is a document headed "Final report relating to Robert Silkman" and is in the terms of a radiological report of Mr Silkman's lumbar spine carried out by CT scan on a date that isn't immediately apparent from that document. Without descending unnecessarily into the detail, the CT or radiological report in relation to Mr Silkman indicates that following a fall he has sustained a fracture to his first lumbar vertebra with significant loss of height, suggesting a spinal pathology and possibly also the exacerbation of a constitutional problem in the nature of a bilateral L5 pars defect and mild anterolisthesis of L5 on S1. Other matters are referred to. The doctor opines that Mr Silkman has sustained a possible subtle L1 compression fracture. 4. On the basis of that material the Crown seeks an order that Mr Silkman not come from his home to attend court to give evidence but alternatively give evidence from a remote location. No basis is proffered in support of that, other than Mr Silkman's desire in his current medical state not to travel the distance between where he lives and this court. I am not critical of the evidence in that form. 5. Objection is taken by Mr Dawson to this application, not upon the basis that the evidence is deficient but upon the basis that having regard to the nature of the evidence Mr Silkman is expected to give, he should be required to attend court personally unless he were in extremis or otherwise constitutionally or medically unable safely to come to court to do so. If the evidence were to establish the latter I would have no hesitation, even notwithstanding a matter I will shortly refer to, to accede to the application. However, the application at present is based not upon a predisposing medical difficulty so much as an expression of a desire not to come to court for medical reasons. However, more fundamentally, the evidence that it is anticipated that Mr Silkman will give is well understood by all parties and in summary relates to an alleged conversation between Mr Silkman and Mr Dawson during a plane trip in which Mr Silkman, as I anticipate his evidence, will say that he was asked a particular question by Mr Dawson. For present purposes I will not elaborate upon the nature of that request or Mr Silkman's response. 6. Ms David on behalf of Mr Dawson maintains, not expressly but by necessary implication, that Mr Silkman's role in these proceedings, having regard to the particular nature of the evidence it is anticipated he will give, is such that his presence in court is essential from the defence perspective. In particular, certain documents are to be put to Mr Silkman which Ms David contends might most instructively occur if he is present in court in person rather than via a television screen through audio and visual link. 7. Having considered the matter, I consider that Ms David's concern that Mr Silkman be present to give his evidence is well-founded and that Mr Silkman should attend court personally. As presently advised, I would therefore reject the Crown's application to call him remotely. Having said that, and adverting to the state of the medical evidence, I would be prepared to reconsider the application if there were evidence to suggest that Mr Silkman's safety were at considerable risk or if there were a real or reasonable prospect that his condition would irreparably and irrevocably deteriorate if he were required to travel to Sydney. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2022