R v A1 (No. 2)

[2019] NSWSC 663

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

1. JOHNSON J: In advance of the trial of the Accused, A1, upon a charge of murder, the wife of the Accused, C1, objected to being required to give evidence as a witness for the prosecution under s.18 Evidence Act 1995.

2. It should be noted that pseudonyms are being used to describe the Accused, his wife and others as a result of orders made by the Court on 22 May 2019: R v A1 (No. 1) [2019] NSWSC 611.

3. At the same time as the s.18 objection, I heard an associated application by the Crown that, if C1 was required to give evidence in the trial, she do so by means of audio-visual link.

Rulings Made on 23 May 2019

4. At the conclusion of submissions on 23 May 2019, I made the following rulings concerning these issues (Pretrial T95, 23 May 2019):

“1. I overrule the objection by C1 under section 18 of the Evidence Act 1995 to her giving evidence at the trial of the accused, with the exception of questions as to [conduct of deceased redacted]. The witness C1 will not be required to answer questions on that topic.

2. I direct that the evidence of C1 can be given if the witness so elects by means of audio visual link. I am satisfied for the purpose of section 5B Evidence (Audio and Audio Visual Links) Act 1998, that it is appropriate to utilise audio visual link in the circumstances of this case.”

5. I indicated that I would publish my reasons for these orders at a later time. This judgment contains my reasons for these rulings.

Hearing of the s.18 Application

6. As noted in R v A1 (No. 1) at [13]-[15], C1 appeared unrepresented on 20 May 2019 with respect to her objection under s.18 Evidence Act 1995. The Court was informed by the Crown that C1 had obtained legal advice through Legal Aid NSW prior to that date on the s.18 issue. When it became apparent that C1 wished to have the assistance of an interpreter, I stood over the s.18 application until 10.00 am on 22 May 2019 and requested that [language redacted] interpreter attend to assist C1. The Court also requested the Crown to make contact with the Public Defenders Chambers with a view to C1 receiving advice and representation at the continuation of the s.18 application.

7. On 22 May 2019, Mr Wilson, Public Defender, appeared for C1 instructed by Legal Aid NSW. I record the Court’s gratitude for the considerable assistance provided by Mr Wilson at short notice in the hearing of the s.18 application.

8. I was satisfied that C1 was aware of the effect of s.18 in accordance with the requirement in s.18(4): Tran v R [2017] NSWCCA 93 at [26]-[30].

9. In support of the s.18 objection, Mr Wilson relied upon the evidence tendered by the Crown on the application for orders under the Court Suppression and Non-publication Orders Act 2010 which gave rise to my judgment in R v A1 (No. 1). This evidence comprised an affidavit dated 17 May 2019 of Samuel Amvrazis, the Crown’s instructing solicitor, which annexed to it a statement dated 11 December 2018 of [name and rank redacted], the Officer-in-Charge, and a report dated 17 January 2019 of Professor Karl Roberts. In addition, Mr Wilson relied upon the transcript of 20 May 2019 where C1 informed the Court of certain matters (by way of submissions) concerning the s.18 objection (Pretrial T31-38).

10. Neither the Crown nor the Accused sought to adduce evidence on the s.18 objection.

11. Mr Wilson provided helpful written submissions dated 22 May 2019 (Pretrial MFI3) and additional case references by email on 23 May 2019 (Pretrial MFI4).

12. The Accused was given an opportunity to make submissions with respect to the s.18 objection in accordance with his entitlement to do so: Tran v R [2018] NSWCCA 145 at [28]-[41].

13. Oral submissions were made on the s.18 objection by Mr Wilson, the Crown and Mr Chapple SC for the Accused (Pretrial T62-75; 78-95).

14. As will be seen, the s.18 objection was argued initially by Mr Wilson upon the basis that there was a complete objection by C1 to giving any evidence in the trial of her husband, A1. The Crown joined issue on that application and submitted that the Court should determine that C1 ought be required to give evidence as a witness for the prosecution at the trial.

15. Upon resumption of the pretrial hearing on the morning of 23 May 2019, I raised with counsel the question whether an objection under s.18 (and a ruling with respect to the objection) could relate to part of the evidence which the objecting person would give at trial, and not the whole of the evidence. In effect, the question raised was whether a s.18 ruling required an all-or-nothing determination.

16. Mr Wilson (Pretrial T80), the Crown (Pretrial T82-83) and Mr Chapple SC (Pretrial T86-87) each accepted that the construction of s.18 left open the prospect of a ruling concerning objection to part of the evidence only, whilst stressing that it was a matter for the Court to determine this issue. I heard further submissions on this aspect and determined ultimately to make the rulings set out at [4] above.

The Crown Case and Evidence Concerning the Objection

17. The Crown alleges that the Accused shot the deceased, C5, [redacted] at C5’s then place of residence at [location redacted] in [time and date redacted]. The deceased was shot [details redacted]. The Crown alleges that the shooting was premeditated and that the gunman lay in wait for C5 to return [time and location redacted] and shot him as he was entering [time and location redacted].

18. The Accused, C1 and C5 were all immigrants from [redacted]. The Accused and C1 had resided in Australia for [redacted]. C5 was [redacted]. The Accused and C1 had sponsored C5 to come to Australia in [date redacted] in the expectation that C5 would marry C6, the daughter of C1 and the Accused. This did not occur. Rather, there was an altercation between the Accused and C5 at the Accused’s residence in [location redacted] on [date redacted] (for which there are rival explanations provided by the Accused and C5). This incident resulted in C5 permanently leaving the Accused’s address. C5 did not inform the Accused of his new address at [location redacted].

19. It is the Crown case that the Accused [accused’s belief about deceased’s conduct redacted] It is the Crown case that the Accused considered that the [conduct of the deceased redacted] dishonoured the Accused and his family and, as a consequence, the Accused took retributive action. The Crown says that the Accused’s [accused’s belief about deceased’s conduct redacted] coupled with his cultural background, constituted the motive for the killing.

20. It was C5 who attended the [location redacted] Police Station on [date redacted] complaining about the incident involving the Accused. On [date redacted], C5 was concerned that [redacted]. C5 made a “000” call and attended the [location redacted] Police Station that evening to report his concerns to police. On [date redacted], C5 made an application at the [location redacted] Local Court for apprehended violence orders against the Accused. This application had not been heard at the time of C5’s death on [date redacted].

21. The Crown case against the Accused may be described as a multi-faceted circumstantial case.

22. C1 has made five statements to police (between [dates redacted]) during the course of the investigation of the murder of C5. However, she has refused to provide a statement concerning [conduct of the deceased redacted], expressing a fear to police of being killed by [identity of third parties redacted] if she did so.

23. Detective [name and rank redacted] has concerns for the safety of C1 and has offered witness protection to her, but C1 has declined as she is reluctant to move her children away from their schools.

24. Against this background, Detective [name and rank redacted] sought advice from Professor Roberts of the School of Social Sciences and Psychology at the Western Sydney University. Professor Roberts is an expert in the field of honour killings. Put shortly, Professor Roberts indicated that the matter appeared on its face to involve the murder of C5 as a form of honour violence or honour killing. Professor Roberts indicated that culturally such a practice serves to regain honour publicly in response to perceived wrongdoing. Professor Roberts stated that this practice occurs in a number of communities including the [redacted] community. He stated that the practice is not limited to a man killing a woman and it is seen across a multitude of family and community relationships.

25. It was evidence of this type which provided the foundation for the Crown application for orders under the Court Suppression and Non-publication Orders Act 2010 which were made on 22 May 2019: R v A1 (No. 1).

26. In addition to the evidence placed before the Court by the Crown and relied upon by Mr Wilson in support of the s.18 objection, it is appropriate to refer as well to fears expressed to the Court directly by C1 on 20 May 2019 (Pretrial T38).

Relevant Statutory Provisions

27. A number of provisions in the Evidence Act 1995 are relevant to this objection.

28. Section 12 provides:

“12   Competence and compellability

Except as otherwise provided by this Act:

(a)   every person is competent to give evidence, and

(b)   a person who is competent to give evidence about a fact is compellable to give that evidence.”

29. Section 18 states:

“18   Compellability of spouses and others in criminal proceedings generally

(1)   This section applies only in a criminal proceeding.

(2)   A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required:

(a)   to give evidence, or

(b)   to give evidence of a communication between the person and the defendant,

as a witness for the prosecution.

(3)   The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.

(4)   If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.

(5)   If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.

(6)   A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:

(a)   there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and

(b)   the nature and extent of that harm outweighs the desirability of having the evidence given.

(7)   Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:

(a)   the nature and gravity of the offence for which the defendant is being prosecuted,

(b)   the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it,

(c)   whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor,

(d)   the nature of the relationship between the defendant and the person,

(e)   whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.

(8)   If an objection under this section has been determined, the prosecutor may not comment on:

(a)   the objection, or

(b)   the decision of the court in relation to the objection, or

(c)   the failure of the person to give evidence.”

30. Section 20 is in the following terms:

“20   Comment on failure to give evidence

(1)   This section applies only in a criminal proceeding for an indictable offence.

(2)   The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.

(3)   The judge or any party (other than the prosecutor) may comment on a failure to give evidence by a person who, at the time of the failure, was:

(a)   the defendant’s spouse or de facto partner, or

(b)   a parent or child of the defendant.

(4)   However, unless the comment is made by another defendant in the proceeding, a comment of a kind referred to in subsection (3) must not suggest that the spouse, de facto partner, parent or child failed to give evidence because:

(a)   the defendant was guilty of the offence concerned, or

(b)   the spouse, de facto partner, parent or child believed that the defendant was guilty of the offence concerned.

(5)   If:

(a)   2 or more persons are being tried together for an indictable offence, and

(b)   comment is made by any of those persons on the failure of any of those persons or of the spouse or de facto partner, or a parent or child, of any of those persons to give evidence,

the judge may, in addition to commenting on the failure to give evidence, comment on any comment of a kind referred to in paragraph (b).”

31. Section 19 Evidence Act 1995 has no application to this case. Nor does s.279 Criminal Procedure Act 1986 as the alleged murder of C5 by the Accused does not fall within the terms of a “domestic violence offence” for the purpose of that provision.

Consideration of s.18 Evidence Act 1995

32. The effect of the Evidence Act 1995, in particular ss. 12 and 18, is to create a statutory scheme concerning the compellability of a spouse and the procedure for a Court to undertake where the prosecution seeks to call the spouse of the Accused to give evidence at the criminal trial of the Accused and the spouse objects to giving evidence. It has been said that there is no room to read down the clear meaning of these provisions by the application of any earlier common law presumptions: R v Glasby (2000) 115 A Crim R 465; [2000] NSWCCA 83 at 475-476 [47]-[54].

33. In LS v Director of Public Prosecutions (NSW) (2011) 81 NSWLR 551; [2011] NSWSC 1016 at 559-560 [38], reference was made to the second reading speech for the Evidence Bill 1995 concerning what is now s.18 of the Act (emphasis added):

“In the second reading speech of the Hon JW Shaw, the Attorney General and Minister for Industrial Relations, concerning the Evidence Bill 1995, reference was made to Clause 18, … (Hansard, Legislative Council, 24 May 1995, page 114):

‘Clause 18 of the bill makes it clear that members of families of a defendant in a criminal proceeding are competent and compellable witnesses. However, such persons may object to giving evidence as a witness for the prosecution and, in certain circumstances, will not be required to give evidence. In this regard members of a family include spouses, de facto spouses, parents, natural and adoptive children and children living in the household of a de facto as though they are the children of the defendant. The approach which has been adopted in the bill offers the best means of ensuring the achievement of the underlying policy objectives of protection of the family unit and the avoidance of undue hardship of the witness’.”

34. Reference has been made in the authorities to the Report of the Australian Law Reform Commission which forms an important part of the background to the Evidence Act 1995.

35. In Fletcher v R (2015) 45 VR 634; [2015] VSCA 146, Dixon AJA (Weinberg JA agreeing) said at 644 [55]:

“The policy behind s 18 is to be found in the Australian Law Reform Commission’s Report 26 Vol 1, Evidence Act [[1985] ALRC 26 at [59]];

A right to seek exemption is generally supported on two policy grounds:

(a) the undesirability that the procedures for enforcing the criminal law should be allowed to disrupt marital and family relationships to a greater extent than the interests of the community really require;

(b)    the undesirability that the community should make unduly harsh demands on its members by compelling them where the general interest does not require it to give evidence that will bring punishment upon those they love, betray their confidences, or entail economic or social hardships.”

36. In R v Rogerson; R v McNamara (No. 1) [2015] NSWSC 592, Bellew J said at [98]:

“There are a number of sound policy considerations which underpin s. 18: Flentjar (supra) at [4]. Those policy considerations were explained by the Australian Law Reform Commission (in ARLC 80) as being:

•   on the one hand, the desirability, in the public interest, of having all relevant evidence available to the courts;

•   on the other hand, the undesirability, in the public interest, that:

•   the procedures for enforcing the criminal law should be allowed to disrupt marital and family relationships to a greater extent than the interests of the community really require; and

•   the community should make unduly harsh demands on its members by compelling them, where the general interest does not require it, to give evidence that will bring punishment upon those they love, betray their confidences or entail economic or social hardships.”

37. As might be expected, the construction and operation of s.18 have been considered largely in decisions of single trial Judges.

38. In R v A2 and Others (No. 4) (2015) 253 A Crim R 574; [2015] NSWSC 1306 at 580 [143]-[145], I said with respect to s.18(6):

“143   Section 18(6)(a) sets a relatively low threshold. The issue is whether the Court finds that there is a likelihood that harm would or might be caused (whether directly or indirectly) to the proposed witness, or to the relationship between the proposed witness and the (related) defendant if the witness gives evidence. It is not necessary that the Court find that harm would probably or necessarily be caused. Rather, it is sufficient that there is a likelihood that harm might be caused.

144   The statute does not define the word ‘harm’ for the purpose of s.18(6). It appears, from the context in which the word is used, that it extends to harm to a relevant relationship, including psychological harm.

145   If s.18(6)(a) is satisfied, the Court must consider whether the nature and extent of that harm outweighs the desirability of having the evidence given. In this regard, the Court must have regard to the non-exhaustive list of mandatory considerations set out in s.18(7) of the Act.”

39. After considering the non-exhaustive list of mandatory factors under s.18(7), I said in R v A2 (No. 4) at 582-583 [168]-[169]:

“168 I return to the question posed by s.18(6) of the Act. Having found there is a likelihood of harm for the purpose of s.18(6)(a), it is necessary to consider whether the Court finds that the nature and extent of that harm outweighs the desirability of having the evidence given. This ultimate question takes into account the mandatory factors identified in s.18(7) of the Act together with any other relevant factors.

169   Section 18(6)(b) itself speaks of the ‘desirability of having the evidence given’. In a criminal trial, there is a public interest in the Crown having available to it to be called, all evidence touching upon the question of the guilt of persons accused of serious offences. Of course, where a witness falls within s.18(2), this consideration may give way in the exercise of the statutory decision making required under s.18(6).”

40. In R v Rogerson; R v McNamara (No.1), Bellew J said at [78]-[81] with respect to s.18:

“78   The provisions of s. 18(6)(a) are couched in terms of there being a ‘likelihood’ of harm. The Oxford English Dictionary defines the term ‘likelihood’ as:

‘…the quality or fact of being likely or probable’.

79   That definition is generally consistent with the observations of Deane J in Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 where his Honour said (at 380):

‘The word likely can, in some contexts, mean ‘probably’ in the sense in which that word is commonly used by lawyers and layman, that is to say, more likely than not or more than a 50 percent chance…’

80   However, the likelihood of harm being caused is qualified by the use of the alternative ‘might’ in s. 18(6)(a). The word ‘might’ connotes a possibility, as distinct from a probability or a certainty. It follows that in order for the section to be engaged I am not required to find that harm is certain.

81   The word ‘harm’ is not defined in the Act, nor is the phrase ‘harm to the person’. In my view, there is no warrant for restricting the notion of ‘harm’ to the likelihood of physical harm. In the context of being called to give evidence, the likelihood of psychological harm can be equally serious. This is particularly so in the context of the possible disruption to, or break down of, a marital or domestic relationship.”

41. Bellew J continued at [82]-[85] to consider the two separate kinds of harm referred to in s.18(6), being the likelihood of harm to the person and harm to the relationship between the family member and the Accused. After considering the mandatory factors contained in s.18(7), Bellew J at [97] referred to other factors which were relevant to the balancing exercise:

“The Crown correctly submitted that although I must take into account each of the factors in s. 18(7), I am not limited to those factors in conducting the necessary balancing exercise. In this regard the Crown placed significant emphasis upon the rule of law, and the obligation placed upon members of the community who are in a position to give evidence in criminal proceedings. That is obviously a relevant factor to take into account. However, the balancing exercise I have to perform is just that – a balance. The obligation to which the Crown referred is not determinative of the issue. It must also be considered by reference to the substance of the evidence which, for the reasons I have already given, is limited.”

42. In R v Barakat; R v Younes (No. 3) [2016] NSWSC 1256, N Adams J said at [26]-[28]:

“26   Turning first to the question of harm, the test as set out in s 18(6)(a) of the Evidence Act is a low threshold: the question is whether there is a ‘likelihood’ that harm ‘might’ either directly or indirectly come to Mrs Younes or her relationship. As Bellew J observed in R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592 at [78] –[80], although the word ‘likelihood’ is a word with a similar meaning to ‘probable’, the qualification of that word with the word ‘might’ in s 18(6)(1)(a) denotes a possibility rather than a probability. What is clear is that there is no requirement for me to find that harm is certain before the section is engaged.

27   Although the application before me proceeded on the basis that the harm would be to the relationship, there is also a real question as to whether harm might also be caused to Mrs Younes herself. Although there was no medical evidence before me about this, Mrs Younes became very upset and seemed quite distraught at the thought of having to give evidence for the prosecution. In addition, she is currently pregnant with her third child and has two children aged three years and younger at home. Bellew J observed in R v Rogerson; R v McNamara (No 1) at [81]:

‘The word ‘harm’ is not defined in the Act, nor is the phrase ‘harm to the person’. In my view, there is no warrant for restricting the notion of ‘harm’ to the likelihood of physical harm. In the context of being called to give evidence, the likelihood of psychological harm can be equally serious. This is particularly so in the context of the possible disruption to, or break down of, a marital or domestic relationship.’

28   As for the question of harm to the relationship, Buddin J

observed in R v Flentjar (No 2) [2008] NSWSC 648 at [4]:

‘It must be acknowledged that there are sound policy reasons which underpin the section. I readily accept that the potential exists for harm to be caused to a domestic relationship if spouses are required to give evidence in proceedings brought against their partners even if no particular harm can be readily identified’.”

43. Other decisions on s.18 objections have focused upon the second leg in s.18(6)(a) concerning likelihood of harm to the relationship between the witness and the Accused: R v Khan (Hidden J, unreported, 22 November 1995) (objection by wife upheld); R v Jacobson (No. 1) [2014] VSC 188 (objection by daughter overruled) and R v Quinn (No. 1) [2016] NSWSC 1101 (objection by mother upheld).

44. Although the first leg in s.18(6)(a) concerning harm to the witness has been invoked in cases of psychological harm (usually associated with harm to the relationship as well), the risk of physical harm to the witness appears to have been relied upon only in R v Barakat; R v Younes (although associated, once again, with harm to the relationship).

45. The present s.18 objection is unusual in that it focuses on the first leg of s.18(6)(a) in the form of physical harm to C1 if she gives evidence on one discrete topic.

Submissions With Respect to the s.18 Objection

46. Mr Wilson submitted that the Court should not require C1 to give evidence over her objection because the Court would find, for the purposes of s.18(6), that:

1. there is a likelihood that harm might be caused to C1 if she were to give evidence about [conduct of the deceased redacted]; and

2. the nature and extent of that harm (death, grievous bodily harm and continuing and genuine fear of death or grievous bodily harm) outweighs the desirability of having her give evidence.

47. Mr Wilson submitted that the evidence that the murder was an honour killing is strong and comprises evidence in various forms apart from any potential evidence which would flow from C1 on this issue.

48. It was submitted for C1 that there was evidence that there is a likelihood that harm might come to C1 if she was required to give evidence concerning [conduct of the deceased redacted]. Reliance was placed upon the Crown evidence used successfully to obtain non-publication and pseudonym orders.

49. Counsel submitted that the Crown case concerning the motive alleged against the Accused was based upon his belief [conduct of the deceased redacted], and that it was neither necessary nor relevant to issues in the trial that C1 be asked to give evidence [conduct of the deceased redacted].

50. It was submitted that it was inevitable that C1 would suffer harm flowing from genuine and ongoing fear for her life should she be required to give evidence and that it was likely that actual physical harm might be caused to her if required to give evidence.

51. By reference to the factors in s.18(7), Mr Wilson conceded that the nature and gravity of the offence being prosecuted is of the most serious kind: s.18(7)(a). With respect to s.18(7)(b) and (c), Mr Wilson submitted that the substance and importance of the evidence, and the weight likely to be attached to it, was not significant in this case and that other evidence of the relevant matters is available to the Crown. He submitted that s.65 Evidence Act 1995 may be relied upon for the admission of C1’s statements in evidence at the trial.

52. With respect to s.18(7)(d), Mr Wilson accepted that there is no evidence about the present nature of the relationship between C1 and the Accused. He submitted, however, that this is not a case where potential harm to the relationship is relied upon in support of the objection. Rather, the objection is based upon the potential for actual physical harm to C1, being the first limb of s.18(6)(a) of the Act.

53. Mr Wilson acknowledged that the evidence does not involve disclosure of a matter received in confidence by C1 from the Accused so that s.18(7)(e) provided no assistance to the objection.

54. Counsel for C1 submitted that the grave nature of the harm outweighed what was said to be limited probative value of the evidence of C1, in circumstances where there is other clear and direct evidence of the Accused’s belief upon which the Crown may rely to establish motive.

55. With respect to the all-or-nothing construction issue concerning s.18, Mr Wilson acknowledged that there was evidence which C1 was able to give on a range of topics relating to the Crown’s circumstantial case which did not give rise to the risk of harm advanced on her behalf. It was accepted that the concerns in this case related directly to any requirement that C1 give evidence of [conduct of the deceased redacted]. Accordingly, Mr Wilson accepted that, should the Court accept that it was open to sever that part of C1’s evidence for the purpose of a s.18 objection, then a ruling which did not require her to give evidence on that topic would effectively meet the basis of the objection in this case (Pretrial T 79-82, 85-86, 91-92).

56. The Crown initially contested C1’s objection to the extent that it was, at that stage, an objection to her being required to give any evidence in the trial of the Accused (Pretrial T 67-73, 74-75). The Crown emphasised that there were a number of areas of evidence which would be sought from C1, as part of the Crown circumstantial case, which did not require questions to be asked of her as to [conduct of the deceased redacted]. It was submitted that these areas were important to the Crown case and that, without the evidence of C1, these parts of the evidence may not be placed before the jury in a complete and coherent way. The Crown accepted that, if an order was made which was confined to that part of her evidence, then the prejudice to the Crown if not being able to call her as a witness would be effectively removed (Pretrial T 83-85, 92).

57. Mr Chapple SC, for the Accused, accepted that it was open to the Court to sever the area of evidence which was of particular concern for the purpose of the s.18 objection. He accepted that the Accused would not be prejudiced if the Court did not require C1 to give evidence concerning [conduct of the deceased redacted] (Pretrial T 90-91).

Decision on s.18 Objection

58. In the present case, the emphasis of the objection relates solely to the likelihood of physical harm to C1 if she is required to give evidence at the trial of her husband with respect to [conduct of the deceased redacted]. No reliance is placed upon the second leg of s.18(6)(a), being likelihood of harm to the relationship between C1 and her husband, the Accused. I approach the matter upon the basis that C1 holds real and genuine concerns about harm which may be visited upon her if she was required to give evidence as to [conduct of the deceased redacted]. The risk of harm to her lay at the heart of the Crown application under the Court Suppression and Non- publication Orders Act 2010 which led to orders being made in R v A1 (No. 1).

59. Although the policy reasons underlying s.18 have been expressed more in terms of the risk of harm to the relationship between the spouse and the Accused, the clear words of s.18(6) refer to a separate category of “harm” to the person. The word “harm” should be construed widely and not constrained artificially. It is not to the point that it may be possible for a person in C1’s position to obtain a measure of protection by agreeing to give evidence on behalf of the Crown and being subject to the Witness Protection Act 1995. As the evidence indicates, C1 has understandable concerns as to how the Witness Protection Act 1995 could apply to her and her family commitments and responsibilities with children. The Crown did not submit that the theoretical availability of the Witness Protection Act 1995 was a factor to be taken into account in overruling C1’s s.18 objection.

60. In the unusual circumstances of this case, I accept that there are real and genuine concerns as to harm being caused to C1 if she was required to give evidence at the trial of the Accused as to [conduct of the deceased redacted]. I am satisfied that the relatively low threshold in s.18(6)(a) has been met in this case.

61. In undertaking the balancing exercise which arises next, it is necessary to have regard to the non-exhaustive list of mandatory factors in s.18(7) for the purpose of considering whether the nature and extent of the harm outweighs the desirability of having C1 give evidence in the trial of the Accused.

62. Section 18(7)(a) requires the Court to consider the nature and gravity of the offence which the Accused has been prosecuted. The crime of murder is very grave so that this aspect operates strongly in favour of the Crown.

63. With respect to s.18(7)(b) and (c), it is necessary to consider the substance and importance of any evidence that C1 might give and the weight that is likely to be attached to it, together with the question whether any other evidence concerning the matters to which C1’s evidence would relate is reasonably available to the Crown. The real issue in the trial is whether the Crown can prove that it was the Accused who killed C5. I accept that the principal relevance of [conduct of the deceased redacted] concerns the Accused’s motive. The alleged motive is based upon the Accused’s belief [conduct of the deceased redacted]. I accept Mr Wilson’s submission that the truth or otherwise of what the Accused believed (other than it was a genuine belief) is of minimal additional probative value.

64. In any event, there is abundant evidence of the Accused’s belief [conduct of the deceased redacted] in other evidence which the Crown proposes to rely upon at the trial. There are text messages from the Accused to [redacted] demonstrating his belief [conduct of the deceased redacted] and text messages from the Accused to [redacted] referring to “honour themes”. In addition, there are references in the Accused’s interviews with police to what could be described as “honour themes”, and the consequences for someone [conduct and consequences redacted] The Crown proposes to adduce evidence from Professor Roberts concerning the honour culture which operates with respect to the Accused [redacted].

65. Apart from this, there is also evidence [details of other evidence of conduct of deceased redacted].

66. To the extent that the Crown seeks to rely upon [conduct of deceased redacted], as opposed to the Accused’s belief that [conduct of deceased redacted], there is a substantial body of evidence available to the Crown already without any direct evidence from C1 as to [conduct of the deceased redacted].

67. There are, however, a number of areas where the evidence of C1 will be significant to the Crown case. It explains C5’s arrival in Australia and a number of events, including the location of [redacted] persons at different times and relevant addresses and vehicles (and other areas) where the direct evidence of C1 is important to the Crown case. The Crown relies upon a circumstantial case with many components and some of these components may only be linked in an effective way by the evidence of C1 herself. Evidence in these areas may be given by C1 without her being asked [conduct of the deceased redacted].

68. For the purpose of s.18(6)(a), I was satisfied that there was a real risk of harm to C1 if she gives evidence at the trial of [conduct of the deceased redacted]. I was not satisfied that there was a risk of harm to the relationship between C1 and the Accused.

69. Having undertaken the balancing exercise under s.18(7), I was satisfied that the oral evidence of C1 was important to the Crown case in a range of areas apart from [conduct of the deceased redacted]. I did not consider that the availability of the mechanism contained in s.65 Evidence Act 1995 constituted a satisfactory way to present the evidence of C1. Accordingly, the Crown case would be harmed if C1 was not required to give evidence in those areas.

Can a s.18 Ruling Operate to Sever Questions Concerning Particular Topics?

70. It was because of this analysis that I considered the question as to whether a ruling on a s.18 objection could require a witness to give evidence on some areas, but not others. This was of particular importance in this case as the s.18 objection was argued upon the basis that it was one confined area of evidence only which gave rise to the likelihood of harm to C1. It was not submitted that this was, in effect, an all-or-nothing situation where the likelihood of harm arose from the fact that C1 gave evidence at all.

71. As noted earlier, each counsel accepted that the proper construction of s.18 permitted the Court to effectively sever part of the proposed evidence of a witness and not require the witness to give evidence in that area, but to otherwise require the witness to give evidence at the trial of the Accused. Counsel made clear that it was a matter for the Court to consider the proper construction of s.18 to determine whether this course was open. It is to that issue which I now turn.

72. It does not appear that there is any authority which bears on this question. In “Uniform Evidence Law”, Law Book Co, 13th edn, Mr Odgers SC expresses the view that, apart from an objection under s.18(2)(b), to giving evidence of a communication between the person and a defendant, the objection must be made and ruled upon with respect to all the evidence the witness may give. Mr Odgers SC said at [EA.18.90] (emphasis added):

“Subject tos 18(2)(b),theobjectionto givingevidencecannotbe partial. Thatis,thewitnessmustobjecttogivinganyevidence. As long as the person is aware of the right to object (and he or she should be informed of the right under s 18(4)), the person will not be permitted to give some evidence and then choose to decline to answer further questions (subject to s 18(2)(b)). If the person did not become aware of the right to object until after starting to give evidence, and then is permitted to decline to give any further evidence, the evidence which has been given up to that point continues to be admissible.”

73. In Williams, Anderson, Marychurch and Roy, “Uniform Evidence in Australia”, LexisNexis Butterworths, 2nd edn, 2018, the authors state at [18-5]:

“A person within subs (2) may object to giving evidence altogether, or merely to giving evidence about certain communications between himself or herself and the defendant. This reflects statutory and common law traditions relating to confidential marital communications.”

74. It appears that the authors base this statement on the terms of s.18(2).

75. It may be taken that s.18(2)(b) constitutes an express category of evidence which may be the subject of an objection for the purpose of the provision. Beyond that, it is necessary to consider the terms of the section, and its statutory purpose and object, for the purpose of determining whether an objection requires an all-or-nothing ruling apart from a s.18(2)(b) objection: s.33 Interpretation Act 1987.

76. Although it be the case that the likelihood of harm to the relationship between the person and the accused may be activated by the giving of any evidence by the person against the particular accused, it must be kept in mind that there is a separate category of harm referred to in s.18(6)(a), namely likelihood of harm to the person.

77. It may be taken that there is a wide, if not infinite, variety of circumstances which may give rise to a likelihood of harm (whether physical or emotional) to a spouse so that the adoption of an all-or-nothing approach to a s.18 objection may not serve the purpose or object of the provision. If, as in the present case, it may be seen that there is one specific area of evidence that gives rise to the likelihood of harm to the person, but that there are other areas of significant evidence which that person can give if called as a witness for the Crown, how does it serve the purpose or object of s.18 to require a ruling that the witness must give evidence on all topics or not on any topics at all?

78. It may be seen that s.18(7)(b) refers to "the substance and importance of any evidence" and that s.18(7)(c) refers to "whether any other evidence concerning the matters" is available to the Crown. The language of s.18 does not appear to be intractable in requiring an all-or-nothing approach with respect to evidence which the witness may give. If an all-or-nothing approach was taken in this case, then a requirement that C1 gives evidence on all topics would give rise to a likelihood of harm to her. On the other hand, a ruling that she not be required to give evidence at all would cause significant prejudice to the Crown, and be contrary to the public interest in having evidence available to be given in the trial of the Accused on a very serious charge.

79. There is nothing in the extrinsic material bearing upon s.18 which supports an all-or-nothing approach to the issues. I do not think that the language of s.18(2)(b) is such that it ought be concluded that the subject matter of that provision is the only severable category of evidence which is open to the Court in determining a s.18 objection.

80. It is true that there are other provisions in the Evidence Act 1995 concerning objections on the grounds of privilege which make it clear that an objection may relate to particular evidence. For example, s.128(1) applies "if a witness objects to giving particular evidence, or evidence on a particular matter" on the grounds of self-incrimination or exposure to a civil penalty. The language used in s.128 is understandable given that an area of self-incrimination is likely to arise from a particular matter or part of a witness' evidence only, so that the section recognises this feature expressly. I do not think the language of s.128 provides any assistance in the proper construction of s.18. Consideration of provisions concerning other areas, such as client/legal privilege (ss.117-126) and other forms of privilege in Part 3.10 Evidence Act 1995, do not assist the resolution of the present objection.

81. This is a highly unusual example of a s.18 objection. I was satisfied that it is open to the Court to excise evidence on a particular topic, and not require C1 to give evidence on that topic, where it is that topic which is the source of a likelihood of harm to the person in the circumstances of the case. This aspect was recognised readily by Mr Wilson in the course of his able submissions on behalf of C1.

82. I was satisfied that the balancing exercise required in determining the s.18 objection should lead to the objection being overruled except for evidence as to [conduct of the deceased redacted].

83. Being satisfied that it is open to the Court to sever the area of evidence in this way for the purpose of a ruling on a s.18 objection, I determined on 23 May 2019 to make the ruling set out at [4] above.

Comment to the Jury Concerning the s.18 Objection and Ruling

84. In light of the foreshadowed ruling which would uphold the s.18 objection in part only, I invited counsel to assist the Court with submissions concerning the operation of ss.18(8) and 20 Evidence Act 1995 in the circumstances of this case.

85. In my view, when C1 is called to give evidence by the Crown, but is not asked a question as to [conduct of the deceased redacted] (and with no cross-examination on this topic either), there is a prospect that the jury may enquire as to why this topic was not the subject of her evidence in the trial.

86. Section 18(8) makes clear that the prosecution may not comment in the manners identified in that provision.

87. Section 20(3) and (4) provide that the Judge or the Accused (but not the Crown) may comment on a failure to give evidence by a person who, at the time of the failure was the Accused's spouse. However, a comment of the kind referred to in s.20(3) must not suggest that the spouse failed to give evidence because the Accused was guilty of the offence concerned, or that the spouse believed that the Accused was guilty of the offence concerned: s.20(4).

88. It seems to me that it is open to the Court to inform the jury that C1 was not required to give evidence as to [conduct of the deceased redacted] because of a ruling by the Court on that issue. In the course of his helpful submissions, Mr Wilson submitted that it would be open to the Court to deal with the matter neutrally and to inform the jury that C1 "had taken an objection to giving evidence in this particular [redacted] area" and that "there are legal reasons why [the Court] upheld that objection" so that the jury will not hear from C1 on that topic (Pretrial T85-86).

89. It was accepted by the Crown and Senior Counsel for the Accused that a comment of that type would be appropriate in the circumstances of this case (Pretrial T86-92).

90. I accept that the formula of words suggested by Mr Wilson is appropriate and does not contravene any provision in ss.18 or 20 of the Act.

91. Before saying anything to the jury on this issue, however, I will hear counsel on the question of what may (and may not) be said to the jury.

Evidence of C1 by Audio-Visual Link

92. As C1 is to give evidence in the trial, and the Crown had applied that she give evidence by means of audio-visual link, it was necessary for the Court to consider s.5B Evidence (Audio and Audio Visual Links) Act 1998 in that respect.

93. For the purpose of s.5B(2) of that Act:

1. I was satisfied that the necessary facilities are available for C1 to give evidence at the trial by audio-visual link: s.5B(2)(a);

2. I was satisfied that the evidence of C1 was both conveniently and appropriately to be given by means of audio-visual link: s.5B(2)(b);

3. I was satisfied that a direction for the use of audio-visual link would not be unfair to the Accused, with Senior Counsel for the Accused accepting that this was so: s.5B(2)(c); and

4. I was satisfied that C1 will give evidence by audio-visual link if required to do so: s.5B(2)(d).

94. As the parties to the proceedings (the Crown and the Accused) did not oppose the making of a direction for the use of audio-visual link, it was not necessary to consider the additional factor arising under s.5B(3) of the Act.

95. I was satisfied that it was appropriate that C1 give evidence by means of audio-visual link in the presence of the jury at the trial of the Accused. Mr Wilson indicated that it may be that C1 will elect, in light of the ruling on the s.18 objection, to give evidence in person in the courtroom. If that course is adopted, then it will not be necessary to utilise the audio-visual link facilities. If, however, C1 wishes to give evidence by audio-visual link before the jury at the trial, then an order has been made for that purpose and it may be acted upon when the time comes.

Conclusion

96. It was for the reasons contained in this judgment that I made the orders on 23 May 2019 as set out at [4] above.

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Postscript: C1 gave evidence in the Crown case by means of audio-visual link during the trial of the Accused, A1. No question was asked by the jury during the trial of the type foreshadowed at [85] of the judgment. With the agreement of counsel for the Crown and the Accused, his Honour said to the jury in the summing up:

“You may have observed that [C1] was not asked any questions as to [redacted]. A legal issue arose concerning that topic and the Court ruled that there were legal reasons as to why [C1] should not be required to give evidence on that [redacted] topic, and that is why there were no questions asked of her.”

Decision last updated: 12 August 2019