What it does
The Evidence (Audio and Audio Visual Links) Act 1998 (NSW) establishes a statutory framework authorising NSW courts to receive evidence and submissions via audio link (telephone or similar one-way sound facilities) or audio visual link (closed-circuit television or equivalent two-way sound-and-vision facilities) instead of requiring physical presence in the courtroom. Its core operative provisions are contained in Parts 1A, 1B and 1C, supplemented by reciprocal interstate arrangements in Parts 2 and 3.
Part 1A (ss 5A–5BAA) applies to any proceeding in a NSW court (defined in s 3 to include courts under the Evidence Act 1995, coroners, prescribed tribunals and Children’s Registrars). Section 5B empowers a NSW court, on its own motion or on application, to direct that any person (whether or not a party) give evidence or make submissions by audio or audio visual link from any place inside or outside NSW, including overseas, provided the facilities are available, the evidence cannot more conveniently be given in person, the direction would not be unfair, and the person will actually participate (s 5B(2)). A specific presumption operates in favour of government agency witnesses (defined in s 5BAA(5) to include expert report authors from the Government Service, NSW Health Service, police corroborating witnesses and prescribed classes). Such witnesses must give evidence by link from within NSW unless the court is satisfied the evidence is likely to be contentious and that physical attendance is in the interests of the administration of justice (s 5BAA(4)).
Part 1B (ss 5BA–5BC) imposes a more prescriptive regime for “accused detainees” (persons in custody in correctional centres, detention centres, police stations or other places of detention, including defendants in summary matters). In “physical appearance proceedings” (trials including arraignment, hearings of charges, and fitness inquiries—s 3), the detainee must appear physically unless the court directs otherwise after considering an exhaustive list of factors in s 5BA(6) (personal security risks, escape risk, past behaviour, conduct in custody, rehabilitation disruption, transport safety, resource efficiency and any other relevant matter). Parties may consent to audiovisual link, but the court must still be satisfied the direction serves the administration of justice (s 5BA(3), (5)). In all other criminal proceedings, audiovisual link is the default (s 5BB(1)), subject to availability and a residual discretion to require physical appearance if the interests of justice so require after weighing similar factors (s 5BB(4)). Bail proceedings attract additional safeguards: audiovisual link is preferred, but audio-only link is permitted only where audiovisual facilities have failed, audio is available, parties consent and the court finds it in the interests of justice (s 5BB(2A)). Facilities for private communication between the detainee and their legal representative must be provided regardless of where each is located (s 5BC).