R v Flentjar (No2)

[2008] NSWSC 648

CITATION:	R v Flentjar (No2) [2008] NSWSC 648
JUDGMENT DATE :	19 June 2008
JUDGMENT OF:	Buddin J
DECISION:	Objection overruled.
CATCHWORDS:	Objection by de facto wife of accused to giving evidence as a witness for the Crown
LEGISLATION CITED:	Evidence Act
CATEGORY:	Procedural and other rulings
PARTIES:	Regina Andrew Wayne Flentjar
FILE NUMBER(S):	SC 2007/1225
COUNSEL:	P Leask (Crown) J Stratton SC/P Pearsall (Accused)
SOLICITORS:	Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSWACT) Ltd (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

THURSDAY 19 JUNE 2008

2007/1225 REGINA v ANDREW FLENTJAR

JUDGMENT - (No 2) Objection by Darlene Cowen pursuant to s 18 of the Evidence Act to giving evidence (T 854)

1 HIS HONOUR: After I advised her that she may have an entitlement to do so, Darlene Cowen, the de facto partner of the accused took objection, pursuant to s 18(2)(a) of the Evidence Act, to giving evidence as a witness for the prosecution. I extended to the witness the opportunity to seek legal advice about her position. She had already obtained legal advice in relation to the evidence that she may be required to give. That was no doubt because she had already been sentenced for two offences which arose from her incidental role in the series of events which culminated in the deaths of the two victims with whose murders the accused is charged. As a result of that advice she sought, and was provided with, a certificate pursuant to s 128 of the Act.

2 After seeking further advice she took the objection pursuant to s 18 to which I have just referred. She was then given the opportunity to advance submissions in support of the objection. The only matter to which she could point was a concern, expressed in the most general of terms, about the harm which might be done to her relationship with her partner should she be required to give evidence.

3 The Court in determining such an objection is required to perform a balancing test. So much is clear from ss(6) and (7) of s 18 which are in the following terms:

(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.

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.

5 That said, all the other factors which are to be weighed in the balance, overwhelmingly favour requiring the witness to give evidence. It is axiomatic that “the nature and gravity of the offence for which the defendant is being prosecuted” points in that direction. Nor is there any doubting “the substance and importance of any evidence” that the witness might give, especially as she has been nominated by the accused as being in a position to support his alibi that, at the relevant time, he was not at the premises in which the deceased met their fate. Moreover, it is clear from other evidence that Ms Cowen attended a service station directly across from her home at approximately 10.40 pm and again at 11.20 pm on the evening of the murders in order to purchase petrol. The significance of those purchases at those times in the overall context of the case scarcely needs to be emphasised. Nor, as far as I can ascertain, is the evidence which the witness can give, “reasonably available” from any other source.

6 I observe that I have had the advantage of hearing, on the voir dire, the evidence that the witness is prepared to give. I am quite satisfied, having heard that evidence, that the witness will not give evidence which she perceives may in anyway damage the accused’s case. On the contrary, it appeared to me that she was quite prepared to feign a lack of memory about relevant events which occurred that evening in an endeavour to protect him. In those circumstances it seems to me that there is little, if any, prospect that her relationship with the accused will be damaged by requiring her to give evidence.

7 It was for the foregoing reasons that I overruled the objection.

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