R v Warwick (No.27) [2018] NSWSC 753

Supreme Court New South Wales

Medium Neutral Citation: R v Warwick (No.27) [2018] NSWSC 753 Hearing dates: 23 May 2018 Date of orders: 23 May 2018 Decision date: 23 May 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Order, pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 that the evidence of Dr Dimuthu Chamara Hettiarachchi be taken by audio visual link on Friday 25 May 2018 from a place in Victoria. (2) Order, pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 that the evidence of Mr Robert Barnes be taken by audio visual link on Friday 25 May 2018 from a place in Victoria. Catchwords: CRIMINAL PROCEDURE – whether evidence of expert witness and the doctor of that witness should be taken by use of audio-visual facilities – where there is a question of the fitness of the expert witness to give evidence – relevant considerations Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown Leonard John Warwick (Accused) Representation: Counsel: G Christofi (Crown) A R Conolly / E Ramsay (Accused)

Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused) File Number(s): 2015/222068 Publication restriction: Not to be published until further order of the Court. Non publication order lifted on 14 February 2020.

EX TEMPORE Judgment 1. Orders have been previously made by the Court for the determination at an early stage of the trial of the admissibility of the evidence to be given by Mr Robert Barnes, an expert retained by the Crown. That issue has been fixed for hearing on 25 May 2018. 2. In advance of that hearing, a subpoena to give evidence was served on Mr Barnes. Since that happened, it became apparent that there was a question as to whether Mr Barnes was physically and mentally fit to give evidence. 3. A report has been forwarded to the Court prepared by Dr Dimuthu Chamara Hettiarachchi. In this report, Dr Hettiarachchi expresses the opinion that Mr Barnes is unfit to attend Court for at least 12 months. 4. A subpoena to attend Court and give evidence has also been served on Dr Hettiarachchi. Dr Hettiarachchi has also been subpoenaed to produce his records with respect to Mr Barnes. 5. By Notice of Motion dated 22 May 2018, the Crown has moved the Court for orders, pursuant to the Evidence (Audio and Audio Visual Links) Act 1998, that the evidence of both of these witnesses be given by audio visual link ("AVL") from a place in Victoria, where both witnesses live. 6. The Accused, through his lawyers, has indicated that no objection is taken to the giving of evidence by Dr Hettiarachchi via the AVL, but that an objection is taken to Mr Barnes giving evidence in the same way. 7. It seems to me that, when on 25 May 2018, these matters are considered by the Court, it will be necessary for the Court to first consider whether or not Mr Barnes is physically and mentally fit to give evidence and if, by reason of any feature of his health, he is prevented from travelling to Sydney to give evidence. The Court may need to consider, as well, if it is inadvisable for Mr Barnes to travel. 8. It may be necessary for evidence from Mr Barnes to be taken on those questions. There seems to me to be no reason why evidence on those questions should not be taken by AVL. 9. However, if there is to be substantial evidence given in respect of the issues relating to admissibility of Mr Barnes' evidence generally, and there is to be lengthy cross-examination including by reference to one or more documents, then the Court would need to be confident that taking the evidence by an AVL will be both practical and technically feasible. Much will depend upon the quality of the link which is able to be established between the remote location where Mr Barnes would give evidence and the Court. An assessment of that necessarily has to await the experience of the Court at the time, when Mr Barnes first gives his evidence. 10. Accordingly, it seems to me to be appropriate that the Court make orders permitting the evidence by AVL for Friday 25 May 2018, but reserving the position with respect to Mr Barnes' evidence on the substantive question of admissibility until the quality of the link is established and the nature of the proposed examination is expounded at greater length. It is only then that the Court will be capable of making an assessment in light of the circumstances at the time. 11. Accordingly, with those reservations, I will make the orders sought in the terms sought, but the limitation on those orders appears from these reasons.