R v Brennan
[2010] QDC 329
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- R v Brennan[2010] QDC 329
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R v Brennan[2010] QDC 329
R v Brennan[2010] QDC 329
[2010] QDC 329
DISTRICT COURT
CRIMINAL JURISDICTION
JUDGE EVERSON
THE QUEEN
v.
SERGIE BRENNAN and
TEGAN SIMONE LEACH
CAIRNS
DATE 27/08/2010
JUDGMENT
CATCHWORDS: | EVIDENCE – receipt via audio visual link – relevant considerations – Evidence Act 1977 s 39R – Criminal Practice Rules 1999 r 53 |
HIS HONOUR: This is an application pursuant to section 39R of the Evidence Act 1997 and rule 53 of the Criminal Practice Rules 1999 that the evidence of Professor Nicholas Fisk in the trial of this matter be received by audio visual link from Brisbane. This application is not opposed.
Section 39R of the Evidence Act is in the following terms:-
"(1)Subject to any rules of the court, the court may, on the application of a party to the proceeding before the court, direct that a person appear before, or give evidence or make a submission to, the court by audio visual link or audio link from a location inside or outside Queensland, including a location outside Australia.
(2)The court may, at any time, vary or revoke a direction made under this section on its own initiative or on the application of a party to the proceeding."
Rule 53 of the Criminal Practice Rules simply states: "The Court may decide to receive evidence or submissions by telephone, video link or another form of communication in a proceeding."
Professor Fisk is an expert in the fields of obstetrics and maternal-foetal medicine. The prosecution seeks to call him to testify as to the nature of the drugs located at the defendants’ residence, the process by which they are understood to cause a termination of a pregnancy and the risks that are associated with their use.
The basis for the application is that requiring Professor Fisk to travel from Brisbane to Cairns in the week set for the trial will cause him considerable personal and professional inconvenience. He is due to chair an international medical conference in Brisbane that week.
The Court has a broad discretion when determining an application of this type. This is confirmed by the recent Court of Appeal decision in R v. O'Neill [2009] QCA 210 at [20]. Relevant considerations essentially relate to the interests of justice and whether it is likely that the defendants will suffer any prejudice if evidence is not given in the physical presence of the jury. Obviously, if questions of credit arise such that the demeanour of the witness is likely to be a significant feature for the jury in accepting or rejecting the evidence, the Court should be cautious when considering such an application. Other relevant considerations include the extent of any documentary material the witness needs to consider in giving their evidence.
The proposed evidence of Professor Fisk is of a formal nature. He is giving evidence as an expert and I understand that his credit is not in issue. I have also been informed that it is not envisaged that he will be shown any documentary material in the course of his evidence.
In the circumstances I am of the view that it is in the interests of justice to allow the application. I therefore order that Professor Fisk give his evidence by audio visual link from a location in Brisbane at the trial of this matter.