New South Wales Supreme Court CITATION : R v Potter [2006] NSWSC 1174 HEARING DATE(S) : 3 November 2006 JUDGMENT DATE : 3 November 2006 JUDGMENT OF : Johnson J at 1 EX TEMPORE JUDGMENT DATE : 11/03/2006 DECISION : 1. Application that hearing proceed by audio-visual link declined; 2. Application adjourned for hearing in Sydney. CATCHWORDS : CRIMINAL LAW - application for life sentence redetermination - whether application should proceed by audio-visual link Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Crimes (Administration of Sentences) Act 1999 Evidence (Audio and Audio Visual Links) Act 1998 Australian Securities and Investment Commission v Rich (2004) 49 ASCR CASES CITED : R v McHardie (1983) 2 NSWLR 733 R v Mokbel [2006] VSC 119 PARTIES : Regina (Respondent) Anthony Shane Potter (Applicant) FILE NUMBER(S) : SC L2001/03 COUNSEL : Mr L Lamprati SC; Ms N Noman (Respondent) Anthony Shane Potter (Applicant in person) SOLICITORS : SC Kavanagh (Respondent) LOWER COURT DATE OF DECISION : --- LOWER COURT MEDIUM NEUTRAL CITATION : --- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Johnson J 3 November 2006 L2001/03 Regina v Anthony Shane Potter (Video Link to Junee Correctional Centre) JUDGMENT (on application by Applicant that life sentence redetermination application be heard by way of audio-visual link) 1 JOHNSON J: This is an application pursuant to s.44(5) Crimes (Sentencing Procedure) Act 1999 in which the Applicant, Anthony Shane Potter, seeks an order determining a specified term and a non-parole period with respect to a sentence of life imprisonment imposed by Hunt J in the Supreme Court of New South Wales at Sydney on 14 October 1988, following his plea of guilty to murder. 2 On 11 August 2006, the application was fixed for hearing today. At that time, the Applicant was represented by Mr Hutchins of the Prisoners' Legal Service. For reasons that are not clear, an order was issued under s.77 Crimes (Administration of Sentences) Act 1999 requiring the production of the Applicant at this Court on 1 December 2006, and not 3 November 2006. The Applicant was then, and remains, a prisoner detained at the Junee Correctional Centre. 3 When I was informed of this state of affairs yesterday, arrangements were made for the application, in the first instance, to proceed by way of video link. The Applicant has appeared today by audio-visual link. He is not represented. He has indicated that he does not wish to be represented on the application and that he wishes the application to proceed today. 4 The Evidence (Audio and Audio Visual Links) Act 1998 permits a range of criminal proceedings to be heard by audio-visual link. The Applicant falls within the definition of "accused detainee" in s.3 of that Act, and the present application for redetermination of a life sentence falls within the definition of "relevant criminal proceeding" in the same section. As the Applicant is presently detained in prison in the State of New South Wales, s.5BB of the Act has application. 5 By that provision, unless the Court otherwise directs, the present hearing cannot proceed, unless the Applicant appears physically before the Court: s.5BB(1). However, s.5BB(1) does not apply if the parties to the proceedings consent to the Applicant appearing before the Court by audio-visual link from any place within New South Wales: s.5BB(2). 6 The Applicant indicated his consent to the matter proceeding today by audio-visual link. The Crown expressed reservations, given the issues raised on the application, about the matter proceeding by audio-visual link with the Applicant unrepresented, but indicated initially that it would consent to that process if the Applicant wished to proceed today. 7 Following some discussion between the Crown, the Applicant and myself, it became apparent that the Applicant proposed to give evidence on the application. That would, of course, involve cross-examination of the Applicant by the Crown Prosecutor. The difficulties experienced in cross-examining a person by means of audio-visual link are well known: Australian Securities and Investment Commission v Rich (2004) 49 ASCR 578 at 585-586. 8 After discussion with respect to the practicalities of the matter proceeding by audio-visual link, the Crown indicated that it did not consent to the matter proceeding in that way, and thus s.5BB(2) no longer has application. 9 The question remains one for the Court to consider whether a direction ought be given under s.5BB(1). Prima facie, in serious criminal proceedings such as this and consistent with the general law, the Applicant ought be present in Court when the case is heard. The present application is a form of sentencing proceeding where the general law expects, subject to rare exceptions (R v McHardie (1983) 2 NSWLR 733; R v Mokbel [2006] VSC 119 at [13]-[14]), that the prisoner be present. 10 Section 5BB(4) permits the Court to give a direction that the matter proceed by audio-visual link in the absence of consent of one or other of the parties, but only if it is satisfied that it is in the interests of the administration of justice for the Applicant to appear before the Court by audio-visual link. A number of factors are referred to in s.5BB(5) which bear upon the discretionary determination as to what may be in the interests of the administration of justice. Most of those factors appear to relate to the risk to the relevant prisoner, the risk to other prisoners, the risk of escape and matters of that sort. These factors do not appear presently relevant. 11 There are two factors which, it seems to me, militate against a direction that this matter proceed by audio-visual link. Firstly, the Applicant is unrepresented. This is an unusual situation on an application of this type. As the Crown has rightly observed, and as I have emphasised to the Applicant, the present application is one where the Crown not only opposes the application that he makes for the setting of a non-parole period and a determinate head sentence, but will seek an order that he not be allowed to make a further application under this section for a period of 10 years. 12 Further, there is a volume of documentary material upon which the Crown will rely on this application which has been provided to the Applicant only in recent times. This includes the Crown written submissions, statements, a psychiatric report and other material. The Applicant has informed me that he has not taken the opportunity of obtaining advice with respect to those documents from the Prisoners' Legal Service. Accordingly, the Applicant's unrepresented status on this application is a matter that bears upon the interests of the administration of justice. 13 Secondly, the Applicant proposes to give evidence on the application and cross-examination will occur. I have mentioned the practical difficulties which arise where cross-examination (especially on documents) is conducted by means of audio-visual link. Section 20E Evidence (Audio and Audio Visual Links) Act 1998 recognises this difficulty and requires a process whereby documents may be put to the person who is being cross-examined in a remote place. 14 I am conscious that a number of persons have prepared themselves mentally and otherwise for the purpose of this application today. Those persons include the mother of the victim and other family members who have come to Court, no doubt in the hope that the matter might proceed to finality. I understand the pressures on them in preparing themselves mentally for a hearing such as this. There are, of course, persons who are here in the interests of the Applicant. They have no doubt undertaken the process of preparing themselves for what, on any view of it, will be a difficult hearing for those involved. 15 It seems to me, however, that it would not be in the interests of the administration of justice for this application to proceed by audio-visual link. It would, in my view, be almost inevitable that, even if the hearing is commenced, it will not be completed and will be adjourned so that the Applicant can be brought to Sydney. Accordingly, I do not propose to proceed with the matter by way of an audio-visual link hearing and I decline to give a direction under s.5BB(1) and (4) of the Act. 16 I propose to make orders that will see the matter listed for hearing four weeks from today on 1 December 2006 in Sydney. During that four-week period, the Applicant will have an opportunity to consider his position further. As the Crown has indicated (fairly and appropriately), it will be in the interests of the Applicant (and I think in the interests of the administration of justice), and it will assist the Court, if the Applicant is represented on this application. The Crown has indicated a willingness to make contact with the Prisoners' Legal Service, at my request, to communicate that the matter has been adjourned from today until 1 December 2006 so that that Service may be in a position to provide advice to the Applicant concerning the application generally, including the documents which are now relied upon by the Crown and which will be tendered on 1 December 2006. 17 It is, of course, a matter for the Applicant to decide whether he wishes to be represented at the hearing before me. It is the almost invariable position on applications of this sort, where very serious issues are raised affecting a number of people, that there is representation by a Public Defender, and usually Senior Counsel, instructed by the Legal Aid Commission. Those practitioners have specialised skills with respect to applications of this sort. It remains a matter for the Applicant as to whether he will seek representation. I recommend to him that he give close consideration to this, and take advice in the period which will now be available before the hearing of the matter. 18 The application is adjourned for hearing before me at 10.00 am on Friday 1 December 2006. I note that an order under s.77 Crimes (Administration of Sentences) Act 1999 was issued (on 26 October 2006) requiring the production of the Applicant at Court in Sydney on that date and at that time. That order is to remain in place and the Applicant is to be produced at Court in Sydney in accordance with that order, so that the hearing may proceed on that day. I note that the Crown will make contact with the Prisoners' Legal Service with a view to communicating the matters to which I have referred in this judgment. I will take steps to have this judgment revised as soon as possible, so that it might also be made available to the Prisoners' Legal Service, as it may assist with some background to the recommendation which I have made. ********** 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.