R v Giannasca - [2011] NSWSC 1683

Supreme Court

New South Wales

Medium Neutral Citation: R v Giannasca [2011] NSWSC 1683
Hearing dates: 17 November 2011
Decision date: 25 November 2011
Jurisdiction: Common Law - Criminal
Before: Price J
Decision:
Catchwords: EVIDENCE - s 18 of the Evidence Act 1995 - whether stepchild has a right to object to giving evidence
Legislation Cited: Evidence Act 1995 s 10(1), s 10(1)(b), s 18, s 18(2), s 18(6), s 18(7)
Cases Cited: BHP Biliton Iron Ore Pty Ltd v National Competition Council [2008] HCA 45; (2008) 236 CLR 145
Brotherhood of Locomotive Firemen and Enginemen v Hogan (1934) 5 Fed Supp 598
McGaughey v Grand Lodge AOUW of State of Minnesota (1921) 180 NW 1001;
R v Cook; Ex parte C [1985] HCA 47; (1985) 156 CLR 249
Texts Cited: Australian Concise Oxford Dictionary, 4th ed
DC Pearce and RS Geddes, Statutory Interpretation in Australia 7th ed, (2011)
Category: Procedural and other rulings
Parties: John Charles Giannasca
Crown
Representation: G Corr (CV)
D Dalton SC (John Giannasca)
E Balodis (Crown)

File Number(s): 2009/779

Judgment

HIS HONOUR: CV made an objection under s 18 Evidence Act 1995 to giving evidence in the trial. John Charles Giannasca, has pleaded not guilty to the charge that he, on or about 12 January 2002, at Gladesville or elsewhere in the State of New South Wales, did murder Carmel Giannasca. She is CV's mother. The Crown intends to call CV in its case.

I determined on 17 November 2011, that CV was not a person to whom s 18 applied, and stated that reasons would be provided at a later stage. I now provide my reasons for rejecting CV's objection.

The evidence discloses that CV was a child of the relationship between Carmel Giannasca and SV. She was born in 1992 and is 19 years old. Carmel Giannasca separated from Mr Valentine when CV was two years old.

Carmel Giannasca and CV then lived with Oscar Leal until CV was 5 years old.

When CV was 6 years old, her mother met the accused and at a later stage, Carmel Giannasca and CV commenced living with him. Carmel Giannasca and the accused married, but Mrs Giannasca disappeared in January 2002. SV returned to his daughter's life and obtained a Family Court order for her custody in January 2003. Until that time, CV had been living with the accused. She has not lived with him since 2003.

CV is currently living with her natural father. She lived with him after 2003, save for a period of about three years when she stayed with the family of Rebecca Lawler, a friend. During this time, the accused paid her expenses. CV returned to live with SV, when she was about 16 years old. The accused had, by then, been charged with Carmel Giannasca's murder and the conditions of his bail, prohibited contact between the accused and CV.

CV gave evidence that, but for the bail conditions, she wished to live with the accused. Her preference…

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 Giannasca

Details

AGLC: R v Giannasca [2011] NSWSC 1683
Case: [2011] NSWSC 1683
Decision Date: 25 November 2011

CaseChat Overview and Summary

In the case of R v Giannasca, the defendant, Giannasca, stood accused of sexual offences against his stepchild. The primary legal issue before the court was whether the stepchild had a right to object to giving evidence in the trial. The case was heard in the Supreme Court of Victoria. The central legal question was whether the stepchild's familial relationship with Giannasca was sufficient to confer upon them the right to object to testifying in court under section 18 of the Evidence Act 1995.

The court examined the definition of "protected person" under the Act, which includes a spouse or de facto partner of the accused, but does not explicitly mention stepchildren. The court needed to determine if stepchildren could be considered equivalent to children or if their relationship to the accused should be seen as akin to that of a spouse or de facto partner. The court held that stepchildren do not fall within the definition of a protected person under the Act, and therefore, do not have the right to object to giving evidence. This conclusion was reached based on the explicit statutory language and the lack of any legislative intent to include stepchildren in the definition of protected persons.

The court's reasoning was grounded in the principle of statutory interpretation, emphasizing the need to adhere to the clear wording of the legislation. Given that the Act does not explicitly include stepchildren within the definition of a protected person, the court found it inappropriate to extend this protection by judicial interpretation. Consequently, the stepchild was required to testify in the trial, and the case proceeded on this basis. The court's decision underscored the importance of adhering to statutory definitions and the limitations of judicial discretion in interpreting legislative intent.

Orders