Supreme Court New South Wales Medium Neutral Citation: R v Early (No 4) [2023] NSWSC 505 Hearing dates: 8 May 2023; 9 May 2023 Date of orders: 9 May 2023 Decision date: 09 May 2023 Jurisdiction: Common Law Before: Yehia J Decision: I refuse the application for a direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) that Barry Sutton give evidence by way of audio-visual link Catchwords: CRIMINAL LAW — Evidence — Murder trial — Evidence by audio-visual link — Application by prosecutor for AVL direction — Where application opposed — Where the witness lives interstate — Where the witness is 74-years-old and has medical issues — Where evidence is relied upon as an admission by the accused — Where medical evidence confirms that the witness is fit to travel interstate — Interests of the administration of justice — Assessment of credibility and reliability — Application for direction refused Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ss 5B, 5B(2), 5B(3) Cases Cited: Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250 KN v R (2017) NSWLR 767; [2017] NSWCCA 249 R v Abdaly; R v Hooseinishoja (No 4) [2022] NSWSC 1529 R v Ngo (2003) 47 NSWLR 55; [2003] NSWCCA 82 Rooney v AGL Energy Limited (No 2) [2020] FCA 942 Category: Procedural rulings Parties: Stanley Bruce Early (Accused) Rex (Crown) Representation: Counsel: J Clarke (Accused) K McKay SC (Crown) Solicitors: Schumer Lawyers (Accused) Office of the Director of Public Prosecutions (Crown) File Number(s): 2021/00174129 Choose an item. JUDGMENT 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. The trial commenced on 1 May 2023, with the jury being empanelled on 2 May 2023. 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. 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. 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. 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. This judgment, therefore, is only concerned with the application that Barry Sutton give evidence by audio-visual link. 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. 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: 1. Two statements of Barry Sutton dated 4 February 1987. 2. Statement of Barry Sutton dated 10 May 2021. 3. Statement of Barry Sutton dated 10 February 2022. 4. Transcript of interview with Barry Sutton dated 9 February 2022. 5. Medical records relating to Barry Sutton's various medical conditions. 6. A statement of Detective Sergeant Joshua Tam dated 26 April 2023. 1. 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. 2. Enquiries have revealed that a remote witness room and AVL facilities are available at Bundaberg Courthouse. 3. 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. 4. 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: "About 1:58pm, I received an email from STEVENS with the following response, 'Hello Josh, I have heard from Dr Kerswill about Barry and Margaret, this was his response. 'I know Margaret (Penny) & Barry well over many years. They are both mentally good. Physically Barry has long­-standing but stable ischemic heart disease & foot osteoarthritis, & Penny also had some arthritic & skin conditions, but when I last saw them some months ago, I would have regarded them both fit to travel interstate, if that was imperative. If they think this is no longer the case, I would suggest an up-to-date medical reassessment.'" 1. 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: "Last saw Barry in February 2023 prior to leave. Barry does have diagnosed ischemic heart disease which could be destabilised, exacerbated, or provoked if he was forced to travel to Sydney, under perceived duress to attend the trial. He has severe osteoarthritis in his ankle and has mobility issues. The stress of uprooting Barry is not preferred as he is not well travelled. He is on heart and osteoarthritic medication. Ultimate recommendation is for Barry to give evidence via AVL." 1. 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: "• I am currently on leave until October 2023. • I am the treating doctor of patient Barry Neil Sutton born 16/01/1949, at the Burrum Street Medical Clinic, Bundaberg, and have been for the last twenty years or so. • I last saw Barry in February 2023, prior to going on leave. • I have been recently seeing Barry as he has complained about issues with swallowing. • I can confirm that Barry has been diagnosed with ischemic heart disease, severe osteoarthritis and again complained about the above swallowing issues. • The severe osteoarthritis in his ankle is a chronic ongoing medical issue which affects his mobility. • His ischemic heart disease could be destabilised, exacerbated, or provoked if he was forced to travel to Sydney, under perceived duress to attend a trial. • I believe a common-sense approach would be to allow a 74-year-old man to give evidence via AVL. The stress of uprooting Barry would be negative for his health and is not recommended. He is not well travelled. • He is on heart and osteoarthritic medication that needs to be taken daily. • My ultimate recommendation is for Barry to give evidence via AVL. Travel would pose a risk to his health and be detrimental to him due to his health conditions." 1. Dr Kerswill was required for cross-examination. He was called and cross-examined on Monday 8 May 2023. 2. Dr Kerswill gave evidence as follows: "Q. Do you see in your statement that you, or that certificate, that about two‑thirds of the way down, "I last saw Barry in February 2023", prior to you going on leave? A. Yes, I did. Q. And you said on that occasion he complained about issues with swallowing? A. Yes. Q. Are you able to say anything more about that? A. I don't have the medical notes but my recollections are that he had chest discomfort and some issues and difficulties with swallowing. I referred him for an x‑ray which was a ways barium swallow. The x‑ray showed a hiatus hernia and reflux and some esophageal dismobility which is effectively some irregular contractions in his food pipe. It didn't show anything serious. I did offer him the opportunity to go and have a formal investigation, which is an endoscopy which he had done in 2018. At that stage he did not want to proceed with that investigation. … Q. Looking at the ischemic heart disease, you say his ischemic heart disease could be destabilised, exacerbated or provoked if forced to travel to Sydney under perceived duress. What way do you say that, that he can be destabilised, exacerbated or provoked with that disease? A. I think it's in the context of him becoming stressed and anxious. The story with his ischemic heart disease, he had angina back in 2001, and had a coronary stent inserted. Since that time, he's been on continuous medication for his heart, but has generally been quite stable. To my recollection, he hasn't had any investigations required for his heart or any specialist referrals in the last five years, but he does become concerned about his heart and is very conscientious with taking his medications. And so the concern that I would have is that the anxiety of being, relocating to another capital city would be the contribution of stress in relation to that request. Q. Then going to the end of your document, you say travel would pose a risk to his health and be detrimental due to his health conditions; is that what you are referring to about the stress? A. Yes, I think so. I think his coronary heart disease to my knowledge has been stable. I haven't had contact with him since February, so I can't say if there is anything new that has arisen. But when I had seen him last time, his presenting complaint of chest discomfort, I thought related more to his digestive system than to his heart. But from a patient's perspective, they always have the issues whether they're chest pain has got a cardiac contribution as well, if they have had heart problems in the past." 1. In cross-examination, Dr Kerswill was asked: "Q. So if we were being true to your initial response on 26 April, 1.52pm, your assessment about their suitability to travel interstate would only change upon an up‑to‑date medical reassessment, wouldn't it, if we were being true to your initial response to the police? A. Initially, when I said in my ‑ the one you just read out to me ‑ that they would be fit to travel if it was imperative to do so. I still think that they, and Barry, is fit to travel on an aeroplane. But when I did the more full report on the 2nd of the 5th 2023, I reflected on other things such as how it would affect him to have to travel under duress, and my suggestion, as the last sentence in that document, the second of the 5th, is that it would be my recommendation that he give evidence without actually having to travel. … Q. So subject to that proviso, is it the position, then, that your initial view that he would be fit to travel interstate if required to give his evidence, subject to the care, wrap around that would be required to allow him to travel with minimal stress and anxiety; is that what you're saying now, sir? A. Yes. I think he's fit, medically fit to travel to interstate, but I think it would be a stress for him regardless of how he gets there. I think he would be at risk of becoming symptomatic from some of the chest pains and swallowing issues that he presented with in recent times. But I don't think it is unsafe for him to travel on a plane with his conditions." 1. He was then asked by me: "Q. I suppose what I am asking is, would stress impact upon him physically, in terms of his heart condition. That is what I'm asking you? A. The answer is, I am not sure. He has a known coronary heart disease, ischemic heart disease which, to my knowledge, has been stable, without having had any recent contact with him over the past three months, I presume that is still the situation, but I don't know for sure whether he has had anymore presentations to Accident and Emergency, or other doctors in my absence in relation to his coronary status." 1. 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. 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. 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. 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. 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. 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. A "common sense approach" is not the relevant consideration in determining this application. Relevantly, s 5B(2) of the Act provides: "(2) The court must not make such a direction if— (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or (c) the court is satisfied that the direction would be unfair to any party to the proceeding, or (d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission." 1. 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]. 2. In Ngo, the court stated at [108]: "Making a direction that the evidence of an accusing witness be received by audio visual link external to the court room must, by its very nature involve unfairness to an accused because it deprives him or her of a face-to-face confrontation with the witness. The provision cannot mean any unfairness, however small the court must consider the degree and effect of the unfairness. In a criminal trial, the best measure is whether the making of a direction will cause the trial to be an unfair one to the accused. An accused person has the fundamental right to a fair trial. A direction should not be made if it would mean that an accused would not have a fair trial." 1. 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: [66] … The use of AVL for the purpose of taking evidence is well established and there is a substantial body of authority on the exercise of the court's discretion to permit its use for that purpose. As the cases make clear, subject to the requirements of the legislation, the decision to permit evidence to be given by AVL is a matter for the primary judge's discretion in the circumstances of the particular case: see Kirby v Centro Properties Limited [2012] FCA 60; 288 ALR 601 at [11] per Gordon J; ASIC v Rich [2004] NSWSC 467; 49 ACSR 578 at [16] per Austin J. [67] While it has sometimes been acknowledged that the question whether the credibility of the witnesses in issue might be relevant to the decision to use AVL: see Kirby v Centro Properties Limited at [10]; ASIC v Rich at [27]-[28] and the cases cited therein; R v Qaumi and Ors (No 9) [2016] NSWSC 171 at [9] per Hamill J and Hughes v Whittens Group Pty Ltd [2017] NSWSC 329 at [21] per Button J, there are numerous decisions where it has been held that the demeanour of a witness could be adequately assessed by AVL: see ASIC v Rich at [24]-[26]; R v Wilkie, R v Burroughs, R v Mainprize (2005) 193 FLR 291; [2005] NSWSC 794 at [31]-[32] per Howie J; R v Lodhi [2006] NSWSC 587; (2006) 163 A Crim R 488 at [65] per Whealy J and the cases cited therein." 1. 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. 2. 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]: "Constraining a party to cross-examining a witness by video link will not always, but may sometimes, involve a degree of unfairness to that party, depending on all the circumstances of the case. This is why an assessment of unfairness necessarily involves a judgment of an evaluative character. Relevant circumstances may include the importance of the witness, whether his or her credit was in issue, the nature and extent of documents involved, whether translation of documents or oral evidence is necessary, time differences in the other forum and the quality of technology. In certain cases, depriving the cross-examiner of the 'reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party' may also work relevant unfairness: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152; [2009] FCA 1306 at [78]." 1. 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]): "As I did in R v Al Batat (No 1), I prefer to follow the more recent decision of the Court of Appeal. That is, I am satisfied that where an important witness is to be subject to a credibility attack, it is preferable that the witness gives evidence in the courtroom. This approach accords with observations made in other cases decided at first instance: ASIC v Rich [2004] NSWSC 467; (2004) 49 ACSR 578 at [22] (Austin J) and Hughes v Whittens Group P/L [2017] NSWSC 329 at [21]." 1. 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. 2. 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. 3. 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. 4. In Rooney v AGL Energy Limited (No 2) [2020] FCA 942, Snaden J stated at [18]: "I acknowledge that some judges of this court have expressed the view that such assessments can be made as well by remote means as by traditional in-court examination: see, for example, ASIC v Wilson [2020] FCA 873 , [35] (Lee J); Tetley v Goldmate Group Pty Ltd [2020] FCA 913 , [16] (Bromwich J); and Capic v Ford Motor Company of Australia Ltd [2020] FCA 486 , [19] (Perram J). Those conclusions are, of course, personal to those who have drawn them. My own experience of present-day remote hearing technology is slightly less positive (although, I stress, not negative). I consider it a good and, in many instances, necessary "Plan B". However, the available technology cannot fully replicate the court room environment that is so often central to an adversarial system of civil justice. In my experience, the technology inhibits (if not prohibits) the cadence and chemistry-both as between bar and bench, and bar and witness box-that personify well-run causes. Those are traditional forensic benefits of which litigants ought not too lightly be deprived: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 , 171 [78] (Buchanan J). Further, the technology often begets delay, particularly when documents are to be supplied remotely. Although broadly reliable, it is not uncommon for connections to be momentarily of poor quality, occasionally to the point that they are unusable. All of these factors influence the user experience of a justice system from which all litigants are entitled to benefit." 1. 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. 2. 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. 3. 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". 4. 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. 5. 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. 6. Accordingly, I refuse the application. ********** 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: 14 June 2023