CRIMINAL LAW — contested application for accused to appear by audio visual link — whether hearing under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) is a “physical appearance proceeding” — legislation unclear — Court proceeds on basis that it is — wishes of victim’s family — desire to read Victim Impact Statements in physical presence of the accused — where accused on South Coast and inquiry in Central NSW — where accused mentally unwell — opinion of psychiatrist — difficult decision — AVL order made — matters relevant to interests of the administration of justice
Quick Take
1Whether a hearing under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) constitutes a 'physical appearance proceeding' (specifically a 'hearing of charges') under s 3 of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) is unclear and was left open; the Court noted the AVL Act should be amended to address this gap, but proceeded on the assumption most favourable to the prosecution (i.e. that s 5BA applied).
2Expert psychiatric evidence concerning the risks of treatment interruption, relapse of psychosis, and physical safety during custodial transport carried the most weight in the 'interests of the administration of justice' assessment under s 5BA, even where the victim's family wished the accused to be physically present for the reading of victim impact statements.
3The wishes of a deceased victim's family regarding the accused's physical presence are relevant and must be treated seriously, but the reading of victim impact statements is not an exercise in shaming, and the therapeutic and empowering purposes of VIS are not greatly diminished by AVL appearance.
