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EVIDENCE (AUDIO AND AUDIO VISUAL LINKS) ACT 1998 - SECT 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-- (a) occur during a weekend,
or
(b) occur on a public holiday, or
(c) occur during each period commencing
on 24 December and ending on the first Friday following 31 December, or
(c1)
occur during any other vacation or holiday period of the court that is
specified in the rules of court, or
(d) occur on each of the days on which
the Local Court Annual Conference is held in any year, or
(e) 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.
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