Criminal law: May 2025

R v Walker [2025] NSWCCA 62

Video-link evidence – emerging view about problems

In this decision about a jury direction, the Court of Criminal Appeal (‘CCA’) commented on the emerging view that in-person evidence has advantages over video evidence. The obiter comments are worthwhile reading for any practitioner making or opposing an application that a witness gives evidence by audio-visual link (‘AVL’), as well as being relevant in cases where AVL evidence, once given, was affected by the quality of the link.

The respondent (this was an interlocutory Crown appeal) was before the District Court facing a jury trial for a range of sexual offences, two counts of intimidation, and one count of break, enter and commit serious indictable offence, all in relation to the same complainant. The complainant (and other witnesses – though only the complainant is important for present purposes) gave evidence by AVL, as she was entitled to do by section 294B(3) of the Criminal Procedure Act 1986 (NSW), because the trial involved a prescribed sexual offence. Section 294B(7) requires that, in any case where a complainant gives evidence by way of AVL, the jury must be directed it is standard procedure and warned not to draw any adverse inference against the accused, nor give the evidence any greater or lesser weight because AVL is used. The directions required by the statute were given. Subsequently, however, the trial judge gave the jury a direction to the effect that any difficulty the jury encountered assessing the credibility of a witness because of the use of AVL should be resolved in favour of the accused. The Crown made an application for a discharge of the jury, asserting at trial (and on the appeal) the trial judge’s additional direction was inconsistent with the statutory warning. The trial judge refused the application to discharge the jury, whereupon the Crown urgently appealed.