New South Wales Consolidated Acts

EVIDENCE (AUDIO AND AUDIO VISUAL LINKS) ACT 1998 - SECT 5BA

5BA Accused detainee to appear physically in physical appearance proceedings

(1) An accused detainee who is charged with an offence and is required to appear (or be brought or be present) before a NSW court in physical appearance proceedings concerning the offence must, unless the court otherwise directs, appear physically before the court.

Note: "accused detainee" and "physical appearance proceedings" are defined in section 3.

(2) Subsection (1) does not apply to any bail proceedings that occur during a weekend or on a public holiday or that relate to an accused detainee who is being held in custody at a place prescribed by the regulations.

(3) Subsection (1) does not apply if the parties to the proceeding consent to the accused detainee appearing before the court by audio visual link from any place within New South Wales at which the accused detainee is in custody other than the courtroom or place where the court is sitting.

(4) The court may make a direction under subsection (1) on its own motion or on the application of any party to the proceeding or of any person on behalf of a designated government agency.

(5) The court may make such a direction only if it is satisfied that it is in the interests of the administration of justice for the accused detainee to appear before the court by audio visual link from a place within New South Wales at which the person is in custody other than the courtroom or place where the court is sitting.

(6) Without limiting the factors that the court may take into account in determining whether it is in the interests of the administration of justice to make a direction under subsection (1), the court must take into account such of the following factors as are relevant in the circumstances of the case:

(a) the risk that the personal security of a particular person or persons (including the accused detainee) may be endangered if the accused detainee appears in the courtroom or place where the court is sitting,

(b) the risk of the accused detainee escaping, or attempting to escape, from custody when attending the courtroom or place where the court is sitting,

(c) the behaviour of the accused detainee when appearing before a court in the past,

(d) the conduct of the accused detainee while in custody, including the accused detainee’s conduct during any period in the past during which the accused detainee was being held in custody in a correctional centre or detention centre,

(e) the potential for disruption of the accused detainee’s participation in a rehabilitation or education program if the accused detainee were to be transported to, and appear in, the courtroom or place where the court is sitting,

(f) safety and welfare considerations in transporting the accused detainee to the courtroom or place where the court is sitting,

(g) the efficient use of available judicial and administrative resources,

(h) any other relevant matter raised by a party to the proceeding or other applicant for the making of the direction.

(7) If the accused detainee is a child, the court must also take into account such additional factors to those specified in subsection (6) as are relevant in the circumstances of the case and that are specified in rules of court.

(8) A person who was a child when a direction was made under this section to appear before a court by audio visual link is entitled to continue to appear before the court by audio visual link in accordance with the direction even if the person becomes an adult before the conclusion of the proceeding concerned.