R v Niguidula (No 7) [2023] NSWSC 571

Supreme Court New South Wales

Medium Neutral Citation: R v Niguidula (No 7) [2023] NSWSC 571 Hearing dates: 22 May 2023 Date of orders: 22 May 2023 Decision date: 22 May 2023 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: (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) ss 5B, 5BAA Category: Procedural rulings Parties: Rex (Crown) Jenny Niguidula (Accused) Representation: Counsel: C Taylor (Crown) A Boe with G Boe (Accused)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Murphy's Lawyers (Accused) File Number(s): 2019/390005; 2019/365704 Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED) 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): 5B Taking evidence and submissions from outside courtroom or place where court is sitting - proceedings generally … (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. 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. 2. 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. 3. 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. 4. I make the following orders: 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.