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R v A1 (No. 2)

R v A1 (No. 2)

Case [2019] NSWSC 663 7 June 2019

Compellability of Witness

Admissibility of Evidence

Judicial Review

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v A1 (No. 2) [2019] NSWSC 663
Hearing dates: 20 May 2019, 22 May 2019, 23 May 2019
Date of orders: 23 May 2019
Decision date: 07 June 2019
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Publication of reasons for orders made on 23 May 2019 as set out in [4]

Catchwords: CRIMINAL LAW – pre-trial application – compellability of witness – Accused charged with murder – wife of the Accused objects to giving evidence for prosecution under s.18 Evidence Act 1995 – objection based upon prospect of harm to witness and not harm to relationship between witness and Accused - witness holds genuine fears of being harmed by [identity of third parties redacted] – where only a confined area of evidence gives rise to prospect of harm to witness – whether proper construction of s.18 requires an all-or-nothing approach to an objection under s.18(2)(a) – no prejudice occasioned to Crown or Accused by allowing objection concerning parts of evidence – objection partially overruled – whether comment can be made by Judge to jury concerning ruling under s.20 Evidence Act 1995 – whether witness can give evidence via audio-visual link - orders made
Legislation Cited: Court Suppression and Non-publication Orders Act 2010
Criminal Procedure Act 1986
Evidence (Audio and Audio Visual Links) Act 1998
Evidence Act 1995
Interpretation Act 1987
Witness Protection Act 1995
Cases Cited: Fletcher v R (2015) 45 VR 634; [2015] VSCA 146
LS v Director of Public Prosecutions (NSW) (2011) 81 NSWLR 551; [2011] NSWSC 1016
R v A1 (No. 1) [2019] NSWSC 611
R v A2 and Others (No. 4) (2015) 253 A Crim R 574; [2015] NSWSC 1306
R v Barakat; R v Younes (No. 3) [2016] NSWSC 1256
R v Glasby (2000) 115 A Crim R 465; [2000] NSWCCA 83
R v Jacobson (No. 1) [2014] VSC 188
R v Khan (Hidden J, unreported, 22 November 1995)
R v Quinn (No. 1) [2016] NSWSC 1101
R v Rogerson; R v McNamara (No. 1) [2015] NSWSC 592
Tran v R [2017] NSWCCA 93
Tran v R [2018] NSWCCA 145
Texts Cited: Odgers, “Uniform Evidence Law”, Law Book Co, 13th edn
Williams, Anderson, Marychurch and Roy, “Uniform Evidence in Australia”, LexisNexis Butterworths, 2nd edn, 2018
Category: Procedural and other rulings
Parties: Regina (Crown)
A1 (Accused)
Representation:
Counsel:
Mr RA Herps (Crown)
Mr K Chapple SC (Accused)
Mr RJ Wilson (for C1)
Solicitors:
Director of Public Prosecutions (Crown)
Allied Lawyers (Accused)
Legal Aid NSW (for C1)

File Number(s): 2015/296084
Publication restriction: Publication of this judgment was restricted whilst the jury trial with respect to the Accused was on foot. In July 2019, the Accused was found guilty of murder. On 9 August 2019, the Court authorised the publication of this judgment subject to redactions which had been made after consultation with the parties and counsel for C1.

JUDGMENT

JOHNSON J: In advance of the trial of the Accused, A1, upon a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v A1 (No. 2)

Details

AGLC: R v A1 (No. 2) [2019] NSWSC 663
Case: [2019] NSWSC 663
Decision Date: 07 June 2019

CaseChat Overview and Summary

In the case of R v A1 (No. 2), the respondent was charged with the murder of his wife. The wife of the respondent, who was a potential witness for the prosecution, objected to giving evidence in the case on the basis of the risk of harm to her from third parties. The legal issues before the court included the interpretation of section 18 of the Evidence Act 1995, which pertains to the compellability of a spouse to give evidence in a criminal proceeding against their partner. The court was also required to determine whether a partial objection under section 18(2)(a) was permissible, given that the risk of harm related only to a specific area of the evidence. Furthermore, the court had to consider whether comments could be made to the jury concerning the ruling on the objection, as per section 20 of the Evidence Act 1995, and whether the witness could provide evidence via an audio-visual link.

The court found that section 18 did not mandate an all-or-nothing approach to objections by a spouse. It held that where the risk of harm was limited to a specific area of the evidence, a partial objection could be sustained without causing undue prejudice to the Crown or the accused. The court also determined that the trial judge could make comments to the jury concerning the ruling on the objection, provided that the comments did not prejudice the accused. Regarding the provision of evidence via an audio-visual link, the court concluded that this could be an appropriate measure to mitigate the risk to the witness while still allowing her to give evidence in the case.

The court partially overruled the objection, permitting the witness to give evidence concerning matters that did not pose a risk to her, while restricting her testimony on the areas where harm was a concern. The court also allowed the trial judge to make appropriate comments to the jury regarding the ruling on the objection. The court further ruled that the witness could give evidence via an audio-visual link to ensure her safety while testifying. No further orders were made in the case beyond these rulings.

Orders