Solicitors:
Schumer Lawyers (Accused)
Office of the Director of Public Prosecutions (Crown)
File Number(s): 2021/00174129
[3]
JUDGMENT
Stanley Bruce Early, the accused, has pleaded not guilty to one count that he, on or about 13 January 1987, in Randwick in the State of New South Wales, did murder Raymond Frederick Keam.
The Crown has previously moved on a Notice of Motion seeking a direction that the witness, Barry Sutton, give evidence by audio-visual link ("AVL"). I refused to make that direction and provided reasons on 9 May 2023. That judgment sets out, in brief form, the Crown case against the accused. It is not necessary to again summarise the allegation in this judgment.
By way of further Notice of Motion, dated 15 May 2023, the Crown seeks an order pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (NSW), directing that Barry Sutton give evidence in the proceedings by audio-visual link from a place other than the courtroom. The application is opposed.
On 8 May 2023, Barry Sutton suffered a fall in his bathroom during which his head impacted with the bathtub. He was bedridden for two days and refused to go to a hospital because he was fearful of contracting COVID-19. It was later reported that Mr Sutton was suffering "terrible pain" and suspected that he had broken ribs.
This event was unknown to prosecuting authorities until 10 May 2023, when Detective Tam successfully contacted Penney Sutton, the witness' wife, to notify the witness that the application for him to give evidence via AVL was unsuccessful, and to make arrangements for his travel to Sydney.
It was during that telephone conversation on 10 May 2023, that Detective Tam became aware that Barry Sutton had suffered the fall and had refused to go to a hospital for two days. At approximately 1:35pm on 10 May 2023, Detective Tam received a call from Mrs Sutton, advising that Barry Sutton had decided to call an ambulance because his pain was too great.
Barry Sutton was admitted to Bundaberg Hospital on 10 May 2023 and was examined by Dr Thomas Papior. Mr Sutton was discharged on the same day.
Dr Papior provided a letter to the Court dated 12 May 2023, which sets out the following:
"I can confirm that Mr Sutton presented to Bundaberg Hospital Emergency Department at 13:46 on 10th May 2023 requesting a review for his right-sided chest pain after he had fallen in the bathroom while at home on 8th May 2023.
…
Mr Sutton advised that his right-sided chest pain was a consequence of humour having fallen in the bathroom on 8th May, landing with his right chest on the edge of the bath. He also sustained a head injury that resulted in a period of unconsciousness that was estimated to be 10 minutes. The chest pain had been significant and was worse on coughing, taking deep breaths and when mobilising … An x-ray of his chest showed collapse and consolidation of part of his left lung that was consistent with community-acquired pneumonia. It is possible that the untreated pneumonia may have caused the weakness and fall or, alternatively, be secondary to the poor inspiratory effort due to pain in his chest during the preceding two days. Mr Sutton was provided with antibiotics for his pneumonia on discharge.
…
Acute symptomatic pneumonia prevents Mr Sutton from travelling by plane. I have reviewed the Qantas Group Medical Travel Clearance Guidelines (QMS 300 V5 December 2022) as my reference and acute symptomatic pneumonia is not suitable for travel. A separate medical review and travel clearance form would be required if he was to travel within 7 days of resolution of his pneumonia if there were complications of ongoing symptoms.
…
The CRB-65 tool that is used to assess severity of community-acquired pneumonia in adults indicates that Mr Sutton's risk of death (30-day mortality) is 5 to 12%, but this is likely to be underestimated as the CRB-65 tool does not consider his comorbidities. I would recommend that Mr Sutton should be given the time to allow resolution of his pneumonia which would not be possible with a prolonged drive to Sydney. Considering the pain in his chest then he may require stronger opiate pain relief to manage the journey which would place him at increased risk of deterioration. These medications were also adversely affect his ability to provide evidence in court."
Dr Papior was called to give evidence on the voir dire. He confirmed, amongst other things, that Barry Sutton had been prescribed Amoxicillin for pneumonia. The usual course is 500 milligrams, three times a day for five days. In cross-examination, Dr Papior agreed that Barry Sutton was given a five-day course of antibiotics and the expectation would be that if his condition had not improved at the end of the five days, he would seek a further medical review to assess whether he required further antibiotics.
Dr Papior gave evidence that Barry Sutton should be given time to allow the resolution of his pneumonia, which would not be possible if he was required to be transported to Sydney by road. If he was required to drive 14 hours to Sydney, he may require strong opiate pain relief which carries its risks in a man of Mr Sutton's age, particularly having already acquired pneumonia.
Dr Papior referred to the results of the CRB-65, stating that those results may be an underestimation because they failed to take into account information about Mr Sutton's comorbidities which include ischemic heart disease, high blood pressure and high cholesterol.
Barry Sutton was called to give evidence on the voir dire. He has problems with mobility which have been exacerbated as a result of his fall. On presentation to the hospital, he was advised that he had a "lung infection" but stated that he was unaware of this condition, as he was asymptomatic.
He gave evidence, however, that he would not be able to deal with the discomfort and pain resulting from sitting in a car for a 14 hour drive to Sydney.
Mr Sutton was challenged in cross-examination as to whether he had already completed his course of antibiotics. Mr Sutton responded that he thought he had one or two doses left and would have to present at his GP to obtain a further prescription of antibiotics.
I am satisfied that Barry Sutton was being honest in his answers. It appeared to me that he was wholly dependent upon his wife, in respect of the doses of medication that he was taking which extended beyond the antibiotics. I accept that he had one or two doses of antibiotics left and that he intended to visit his GP to determine whether he required a further course of antibiotics.
[4]
Submissions
The Crown submitted that in view of Mr Sutton's fall, the associated pain in his chest, and his diagnosed pneumonia, I would be satisfied that the witness could not travel by plane and that any requirement that he travel by road would cause him a great deal of pain and distress.
On behalf of the accused, it was submitted that it is in the interests of justice that the witness give evidence in person. In particular, having regard to the importance of the evidence, the jury should have the best opportunity to assess the witness's demeanour. The evidence of Barry Sutton is relied upon by the Crown as evidence of an admission by the accused to the killing of Mr Keam.
In weighing up the medical condition of Barry Sutton, I was urged to consider that arrangements could be put in place for the witness to be conveyed by road to Sydney with frequent breaks and provided appropriate pain relief medication.
[5]
Consideration
I addressed the applicable principles in R v Early (No 4) [2023] NSWSC 505. I have had regard to those principles for the purpose of determining this further application.
I take into account the fundamental right of the accused to a fair trial. Notwithstanding the technological advancements and increased willingness by the Courts to utilise AVL facilities, the importance of attendance by witnesses in court to give evidence in person, should not be underestimated.
However, I accept that Barry Sutton suffered a fall on 8 May 2023. He continues to suffer from significant pain in his chest. He has been diagnosed with pneumonia. He continues to take pain relief medication, together with medication for his multiple comorbidities, which include ischemic heart disease, high blood pressure and cholesterol.
It is uncertain whether he will be prescribed a further course of antibiotics, but I am satisfied that he has been diagnosed with pneumonia and that condition has not yet resolved.
There is no doubt in my mind that he cannot travel by air to Sydney. The only option would be for the witness to be driven to Sydney. The drive time is 13 hours and 40 minutes via the Pacific Highway. Even if the witness were allowed frequent breaks, he would be required to sit in a car for the duration of the trip. Although the pain relief medication operates to relieve his pain, it does not resolve it completely. Dr Papior stated that in the event Barry Sutton was required to be driven to Sydney, he may require strong opiate pain relief which would give rise to increased risks in a man of his age, and particularly having regard to his acquired pneumonia.
Having given the matter a great deal of consideration, I am persuaded that the events that have come to light since 9 May 2023 and the additional evidence relied upon by the Crown, warrant a finding that it is in the administration of justice for the Court to direct that the witness give evidence by audio-visual link.
Accordingly, pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1988 (NSW), I direct that Barry Sutton give evidence by way of audio-visual link from a place other than the courtroom, namely from Bundaberg Court.
[6]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 June 2023
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Early
Legislation Cited (1)
Evidence (Audio and Audio Visual Links) Act 1988(NSW)