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

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

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.
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.
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.
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…

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 Fletcher

Details

AGLC: R v Fletcher [2015] NSWSC 1630
Case: [2015] NSWSC 1630
Decision Date: 05 November 2015

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the matter of R v Fletcher involved a murder trial where the accused, Fletcher, stood trial for the alleged murder of an individual. The central issue arose when the daughter of the accused objected to her father being compelled to give evidence as a Crown witness. The objection was made under section 18 of the Evidence Act 1995 (NSW), which allows for objections to be raised by spouses or children of the accused in such circumstances. The court had to determine whether the daughter's objection was valid and whether Fletcher should be compelled to testify as a Crown witness.

The court examined the scope and applicability of section 18 of the Evidence Act 1995 (NSW), focusing on the specific circumstances of the case and the relationship between the accused and his daughter. The primary legal issue was whether the objection raised by the accused's daughter was sufficient to prevent Fletcher from being compelled to give evidence as a Crown witness. The court needed to balance the interests of justice with the rights of the accused and the potential impact of the objection on the trial's outcome.

The court concluded that the objection raised by the daughter did not meet the criteria set out in section 18 of the Evidence Act 1995 (NSW). The court found that the objection was not valid, as it did not sufficiently demonstrate that compelling the accused to testify would cause significant distress to him. Consequently, the court ruled that Fletcher should be compelled to give evidence as a Crown witness. The decision was based on the court's assessment that the interests of justice outweighed the potential distress to the accused and that the testimony was necessary for a fair trial. The objection was not upheld, and Fletcher was required to testify.

Orders