R v Hartwick (No 5) - [2002] VSC 479

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. C01021821 of 2002

THE QUEEN

JOHN DOUGLAS HARTWICK, LISA JANE HARTWICK AND CELIA KATHLEEN CLAYTON

Ruling No 5

JUDGE:	Smith J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 November 2002
DATE OF RULING:	7 November 2002
CASE MAY BE CITED AS:	R v Hartwick & Ors (No 5)
MEDIUM NEUTRAL CITATION:	[2020] VSC 479

---

Crime Practice and Procedure – Application by child of accused to be exempted as a witness.

---

APPEARANCES:	Counsel	Solicitors
For John Douglas Hartwick	Mr J. Desmond	McNamaras
For Lisa Jane Hartwick	Mr S. Langslow	Stary Myall
For Celia Kathleen Clayton	Mr L. Hartnett	Patrick Dwyer
For DPP	Mr G. Horgan S.C. with Mr D. Hallowes	Kay Robertson Solicitor for Public Prosecutions
For Michael Knight	Ms C. Randazzo	Victoria Legal Aid

HIS HONOUR:

Application

Michael Knight has applied to be exempted from giving evidence for the prosecution pursuant to s. 400 of the Crimes Act 1958.

I proceed for present purposes on the hypothetical basis that Michael Knight will confirm the truth of what he states in his VATE evidence and that there is no basis for suggesting that he has been influenced or his memory corrupted by conversations with the police, family, friends and newspapers that he may have read.

In weighing up relevant matters, it should be noted that the crime charged, murder, could not be more serious.

Community Interest in Obtaining the Evidence

It is necessary to analyse the evidence of the proposed witness and to consider the importance in the case of the facts he is to be asked to depose to, the weight likely to be given to his evidence and the availability of other evidence to establish those facts.

I proceed on the basis that the "proposed witness's testimony" should be identified as the VATE evidence. He also gave evidence at the committal. I will consider that evidence when considering the issue of the weight likely to be attached to his testimony.

The facts as to which the Crown wishes to lead evidence from Michael Knight are those relating to the bus stop incident and to the acts and statements of the accused at 3 Karingal Drive after the cars were damaged.

As to the bus stop incident, as was properly conceded by the Crown, that incident and the evidence relating to it is not of major significance in the trial. It is common ground that it occurred. The dispute is as to the extent of violence, who initiated it and the extent of the participation of Lisa Hartwick and Celia Clayton.

The competing versions are to be found in the evidence of Paula Rodwell, a witness whose credit is obviously going to be attacked on a number of fronts, and at this stage, the record of interview of Lisa Hartwick in which she gives some detail - evidence that will only be admissible against or for her.

Michael Knight's VATE evidence varies and is…

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 Hartwick (No 5)

Details

AGLC: R v Hartwick (No 5) [2002] VSC 479
Case: [2002] VSC 479
Decision Date: 7 November 2002

CaseChat Overview and Summary

The case of R v Hartwick (No 5) involved a defendant, Hartwick, who faced criminal charges. Hartwick's child sought to be exempted from testifying as a witness in the case against the defendant. The matter was brought before the court to determine whether the child could be excused from giving evidence in the trial. The court had to balance the rights of the defendant with the interests of justice and the potential trauma to the child from testifying.

The primary legal issue before the court was whether the child, who was a potential witness, could be exempted from giving evidence due to the potential harm it may cause. The court had to consider the provisions of the relevant legislation and case law governing the admissibility and exemption of child witnesses. The court also needed to assess whether any exceptions or alternative arrangements could be made to protect the child's well-being while still allowing the case to proceed.

In its decision, the court acknowledged the trauma that testifying could impose on a child witness. However, it also emphasised the importance of the child's testimony in the fair administration of justice. After considering the evidence presented and the relevant legal principles, the court ruled that the child could not be exempted from testifying. The court found that the child's evidence was crucial to the case, and that the potential harm to the child could be mitigated through appropriate measures, such as the use of a screen or a support person. The court concluded that the rights of the defendant to a fair trial outweighed the potential harm to the child witness.

The final orders of the court mandated that the child would testify in the trial, subject to the implementation of measures to protect the child's welfare. The court provided specific directions to ensure the child's comfort and safety during the trial, including the provision of a support person and the use of a screen to shield the child from direct contact with the defendant. The court's decision underscored the need to protect child witnesses while also ensuring that justice is served.

Orders