Published by Geoff Harrison | 15 November 2024
Applications for witnesses to give evidence via audio visual link or telephone are dealt with under the Evidence (Audio and Visual Links) Act 1998 ('the Act'). The test for such orders is essentially whether it is in the interests of the administration of justice for the court to do so: s5B(3) of the Act. According to the Local Court Practice Note (Criminal Crim1), applications are to be made no less than 10 days prior to the hearing.
Other Sources:
Cases:
R v Ngo [2003] NSWCCA 82 (see at [83], [108] & [120] - [121])
Sanson v Sanson [2021] NSWSC 417 (see at [29])
R v Qaumi & Ors (AVL) [2015] NSWSC 1711 (re administration of justice)
Extracted Legislation:
EVIDENCE (AUDIO AND AUDIO VISUAL LINKS) ACT 1998 - SECT 5A
Application of this Part
(1) This Part applies to any proceeding (including a criminal proceeding) in or before a NSW court.
(2) An application cannot be made, and the court may not give a direction, under this Part for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place outside New South Wales that is a participating State.
(3) An application cannot be made, and the court may not give a direction, under this Part for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place in New Zealand.
Note--: Part 6 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth makes provision for audio links and audio visual links with New Zealand.
EVIDENCE (AUDIO AND AUDIO VISUAL LINKS) ACT 1998 - SECT 5B
Taking evidence and submissions from outside courtroom or place where court is sitting--proceedings generally
(1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.
(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.
(2A) A court must not make a direction under this Part in relation to the giving of evidence or making of a submission by audio visual link by any accused detainee in any criminal proceeding in relation to the detainee concerning an offence alleged to have been committed by the detainee. However, this subsection does not prevent the making of such a direction in relation to an accused detainee in any other proceeding to which this Part applies.
Note--: Part 1B of this Act contains provisions with respect to the appearance of accused detainees who are in custody in criminal proceedings.
(3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, 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.
...
EVIDENCE (AUDIO AND AUDIO VISUAL LINKS) ACT 1998 - SECT 7
NSW courts may take evidence and submissions from outside State
(1) A NSW court may, on the application of a party to a proceeding before the court, direct that evidence be taken, or submissions made, by audio link or audio visual link, from a participating State.
(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 evidence or submissions can more conveniently be given or made in this State, or
(c) the court is satisfied by a party opposing the making of the direction that the direction would be unfair to the party.
(3) The court may exercise in the participating State, in connection with taking evidence or receiving submissions by audio link or audio visual link, any of its powers that the court is permitted, under the law of the participating State, to exercise in the participating State.
Comentários