R v Fletcher

[2015] NSWSC 1630

Supreme Court

New South Wales

Medium Neutral Citation:	R v Fletcher [2015] NSWSC 1630
Hearing dates:	2 November 2015
Date of orders:	02 November 2015
Decision date:	05 November 2015
Jurisdiction:	Common Law
Before:	Button J
Decision:	The objection will not be upheld. Accordingly, Ms Parker must give evidence if called by either party.
Catchwords:	CRIMINAL LAW – procedure – objection pursuant to s 18 of the Evidence Act 1995 (NSW) – objection made by the daughter of the accused – whether the applicant should be compelled to give evidence as a Crown witness in a murder trial – objection not upheld
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 15A Criminal Procedure Act 1986 (NSW), s 306ZB(2) Evidence Act 1995 (NSW), ss 18, 18(6), 18(7), 18(7)(a), 18(7)(b), 18(7)(c), s 18(7)(d), s 18(7)(e), 38, 65(2)
Category:	Procedural and other rulings
Parties:	Regina Adam Troy Fletcher
Representation:	Counsel: K Ratcliffe (Crown) M Ainsworth (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) Bayside Lawyers (Accused)
File Number(s):	2014/184429

Judgment

1. This is an objection pursuant to s 18 of the Evidence Act 1995 (NSW) (the Act) brought by the natural daughter of the accused, Ms Andrea Parker (the applicant) (I have used a pseudonym due to her age in order to comply with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)), against her being called as a Crown witness in the trial of her father for the offence of murder. I rejected the objection before the jury was empanelled. The parties were content for me to provide my reasons for doing so at a later stage of the trial. This judgment constitutes those reasons.

Background

2. To state the background very succinctly, and based upon the evidence placed before me on the voir dire, the Crown allegation is that on 18 June 2014 the accused inflicted serious violence upon the deceased, Mr Paul Connell, when an argument developed whilst those two men were at the home of the deceased and a Mr Ian Cavanough, who is said to be an alcoholic. Mr Cavanough has recounted to the police that the accused was very much the aggressor, and his actions included hitting the deceased forcefully to the head with a chair.

3. The applicant, who was then aged 14 and is now aged 16, was at the flat. A few days after the incident, she engaged in a recorded interview with police. In a nutshell, her position was that, although present, she did not see or hear much of what occurred. That was because she had gone outside, and was listening to music on her headphones.

4. Separately, Ms Kay Henson has given a statement to police that is to the effect that the applicant gave her a different version at around the same time, and that version was more inculpatory of the accused.

5. To complete the evidence placed before me, there are also monitored telephone calls from prison in which the accused expresses the firm position to his daughter and others that she should give no more statements to the police.

6. I was told that the applicant has had legal advice about her objection; that she wished to maintain it; that no lawyer was available to assist her in making the objection; and that she also wished to make the objection remotely. The parties made a joint submission that s 306ZB(2) of the Criminal Procedure Act 1986 (NSW) was apposite, and the application was accordingly heard in that way.

7. The parties also agreed that the applicant should place matters of fact before me on oath or affirmation; again, that procedure was adopted. I asked the applicant a number of questions, and thereafter invited questions from counsel. In the event, neither of them wished to ask any questions of the applicant.

The objection

8. In short, the evidence of the applicant was that it was only some months before the incarceration of her father in June 2014 that they commenced to live together. During that time, and at earlier times, they enjoyed a good relationship. There was a time when they did not see each other for many years. Since he has been bail refused, they have been in regular phone contact, but do not see each other very often at all. She gave evidence that their relationship is a close one, and she said that their relationship could be damaged if she were forced to give evidence in the Crown case against her father. She could not point to any specific way in which she thought that that could occur.

The positions of the parties

9. The position of the Crown was to oppose the objection. It was emphasised that the count in the indictment is the most serious known to law; that the applicant is an eyewitness to what occurred; that the only other witness is a person whose alcoholism could detract from the probative value of his evidence; and that, if it be the case that, as foreshadowed by defence counsel, self-defence is to be an issue in the trial, clearly the jury will need to focus sharply on precisely what occurred between the accused and the deceased. It was also said that, in all likelihood, if the witness were not compelled to give evidence, her interview and her alleged prior inconsistent statement would not fulfil the preconditions contained in s 65(2) of the Act, and therefore would not be able to be placed before the jury.

10. Counsel for the accused adopted a position of neutrality on the matter. He accepted the gravity of the offence. He accepted that a Crown application under s 38 of the Act may have merit. And he frankly conceded that the absence from the consideration of the jury of the versions of the applicant could harm the interests of his client.

Determination

11. Turning to my determination, it can be seen that s 18(6) of the Act calls upon me to undertake a balancing test. It is as follows:

Compellability of spouses and others in criminal proceedings generally

…

(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.

12. Section 18(7) is as follows:

(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.

13. Section 18(7) mandates a number of matters that I must consider, and it is convenient first to discuss them briefly.

14. Suffice to say the offence is the most serious known to law. And the nature of the offence is an alleged bashing at which only two witnesses compellable by the Crown were present: s 18(7)(a).

15. The evidence of the applicant is, to my mind, important. Even if it be correct that she was outside, and distracted by music, I consider that her truthful recollection of the crucial events of the day has a very significant part to play in the consideration of the matter by the jury: s 18(7)(b).

16. It is true that, in terms of substance, the evidence admits of different interpretations. But defence counsel has accepted that, in all likelihood, s 38 of the Act will have a role to play if the applicant is called. I consider that the substance of the evidence of the applicant – that is, what she may say about the events of the day, and about her interview, and the alleged statement to Ms Henson – could be given substantial weight by the jury: s 18(7)(b).

17. There is, as I have said, another witness to what occurred; namely, Mr Cavanough. His evidence is reasonably available. But one can infer that there will be a forceful defence impugning of his reliability, and perhaps his credibility as well: s 18(7)(c).

18. Turning to the nature of the relationship, I accept that it is a good one. There is little to suggest disharmony or lack of love between father and daughter. It is true that, in the monitored phone calls, the accused expressed a very firm position; in the circumstances, I do not consider that that sheds an adverse light on his relationship with the applicant. In light of his position – bail refused on a charge of murder – it may well have been natural for him to wish that his daughter say nothing more to the police than she already had.

19. In short, I proceed on the basis that the applicant and the accused have a good, loving, father and daughter relationship: s 18(7)(d).

20. There is no suggestion that the applicant will reveal a confidential matter received from her father: s 18(7)(e).

21. Turning now to the balancing exercise, the test contained in s 18(6) is not a matter of weighing the desirability of the evidence being given against the soundness of the relationship. Rather, it is a matter of weighing the former factor against the likelihood that harm might (at its lowest) be caused, directly or indirectly, to the applicant, or to her relationship with her father.

22. The position of the applicant is that she felt that the relationship “may be” harmed by her giving evidence. She was not able to point to some specific harm; that is hardly surprising, in light of her youth.

23. I think there is some chance that the applicant will suffer psychological and emotional harm if compelled to give evidence against her father. There is also a chance that their relationship will suffer if she is compelled to do so. Having said that, her father will surely understand that she is being compelled by the compulsory process of a subpoena and by my ruling to give evidence in his trial. The applicant will understand that as well, when she reflects upon her own conduct. As well as that, the evidence of the applicant, as placed before me on the voir dire, is not particularly adverse to the interests of the accused.

24. In short, I assess the occasioning of harm, even indirectly, to the applicant or to her relationship with her father, to be reasonably possible, but the risk of it is by no means great.

25. And in any event, weighing up all the mandatory factors in the statute, and considering the matter as a whole, I am soundly satisfied that the nature and extent of that potential harm does not outweigh the desirability of this important witness giving evidence about the direct facts said to constitute the act causing death in a count of murder.

26. It follows that the test contained in s 18(6) of the Act has not been made out, and the objection should not be upheld. Accordingly, Ms Parker must give evidence if called by either party.

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Decision last updated: 20 April 2016