R v Hartwick (No 5)
[2002] VSC 479
•7 November 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. C01021821 of 2002
| THE QUEEN |
| V |
| 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 | |
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Crime Practice and Procedure – Application by child of accused to be exempted as a witness.
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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 | 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 somewhat vague. It does lend more support to Paula Rodwell's evidence than to Lisa Hartwick's interview and so assists the Crown in bolstering the credit of Paula Rodwell. At the same time it tends to suggest that she was exaggerating the force and vigour of the attack upon her.
In considering the weight likely to be attached to his VATE testimony, I note that Michael Knight gave evidence at the committal which while also vague and differing in some details from the VATE evidence, appears to give increased support to the Paula Rodwell version, but also suggests he was not looking closely, he stating that he did not want to look.
Of more importance in the case because of their direct relevance to the issue of intent and concert are the events after the cars were damaged. In his VATE evidence, Michael Knight gave evidence of weapons held by the accused, their mood and things said by them about their intentions.
As to weapons there appear to be four witnesses who have given reasonably consistent evidence of the weapons seen in the possession of Celia Clayton and Lisa Hartwick. As to John Hartwick only one of them, Larene Pearce, says that she saw him in possession of a knife and another, Keith Canham, spoke of weapons being normally in John Hartwick's car which was used by the three to travel to 37 Karingal Drive. There is very little evidence of observations of the accused holding weapons when they entered the car.
Michael Knight does not state in his VATE evidence the time at which they had the weapons he described. He left 3 Karingal Drive before the accused set off for 32 Karingal Drive. As to Celia Clayton his descriptions of her weapon matches other evidence. As to Lisa Hartwick, his evidence matches other evidence to the extent that wooden poles were identified. Of particular significance for the Crown is his VATE evidence that John Hartwick had a knife and pole but the evidence of Larene Pearce and Keith Canham combined is to the same effect.
I assume that there will be issues raised re the credibility of the other witnesses with the result that the Crown could benefit from the VATE evidence of Michael Knight.
At the committal Michael Knight initially confirmed that each accused had a weapon but he attributed a pole and not a knife to John Hartwick. Shortly afterwards he said that he had not seen any of them with any weapons.
As to what was said, there is less evidence available to the Crown. Keith Canham gave evidence of Celia Clayton talking about cutting the bastard's throat or words to that effect and in the case of Lisa Hartwick complaining that she thought it was all sorted, that they were fucking dogs and yelling. Rhonda Canham gave evidence that Lisa Hartwick said that they were going to go down and kill them. Stephen Smith gave evidence that they all said that they were going down there to get them. Keith Canham described John Hartwick as trying to calm the women down saying he would sort it out.
Michael Knight in his VATE evidence confirms the statements attributed to Celia Clayton but attributes none to his mother and in response to a leading question as to what John Hartwick said he was going to do with the pole he said that John Hartwick said he was going to hit them.
In considering the significance of Michael Knight's evidence it must be borne in mind, however, that there appears to be no issue that Stephen Borg did smash into the cars of John Hartwick and Celia Clayton and almost into the wall of John Hartwick and Lisa Hartwick's home, that they were angry and that the three got into the car together and drove to 37 Karingal Drive to see Stephen Borg and Paula Rodwell about what had occurred. In addition there is forensic evidence linking poles found at the Hartwick residence to the incident. The evidence that the two women were armed or that at least Celia Clayton carried a knife is quite strong.
At the committal however, Michael Knight said he could not remember what was said but that there was a lot of yelling.
I turn to the issue of the weight likely to be attached to Michael Knight's VATE testimony. It faces two problems. The first is that it has been contradicted in some important details by his committal evidence. There are also significant issues arising out of his longstanding ADHD condition - a neurobiological disorder.
Evidence was led from his treating pediatrician, Dr Bannister, about his condition. When diagnosed he had every characteristic in the diagnostic lists. From Dr Bannister's evidence it is clear that, at the time of the incident and when giving his VATE evidence, he would have had a short attention span, difficulty concentrating and comprehending things said and problems with memory. His VATE evidence was recorded over about 88 minutes and it is apparent from the videotape that as time went on, he was having increasing difficulty concentrating on the questions and his answers and remembering what happened.
It is also likely that should he give evidence in the trial he will be non-responsive - partly because he appears to have developed the defence mechanism of switching off and not talking about the events. This will not help his credibility. It is also likely that the stress of giving evidence will compound his underlying neurobiological weaknesses and thus will affect his ability to recall (particularly short term), comprehend and concentrate and his ability to control his impulsive behaviour. He is likely to become confused and unsure. This too will affect his credibility.
It is also likely that if Michael gives evidence, one of the accused will call Dr Bannister to give evidence of Michael's condition so that the jury will be informed of the impact of it on his ability to witness an event, remember it and communicate that memory to the jury.
Thus on the issue of the interest of the community in obtaining the evidence of Michael Knight, it may be said that while the VATE evidence assists the Crown, it is not vital and the probabilities are that, if he is called, the jury will have grave reservations about his reliability as a witness in light of changes in his evidence and his ADHD condition.
Section 400(3)(a), (b) and (c)
Turning to the other issues, Michael Knight is now 12 years old. His relationship with Lisa Hartwick is an important one. She has been the prime carer in his life to date. The relationship is plainly important to him. In his interview when asked how he felt when he left his mother on the night of 23 May 2001 he said that he was sad - sad because he expected his mother would go to gaol over the hitting of Paula Rodwell. I also note that at the end of the interview his thoughts were on his mother and he asked about his mother and how she was. How giving evidence against his mother would affect their relationship is difficult to determine. He is by seeking exemption doing what he can to avoid the giving of evidence. While both he and his mother may be helped in their relationship by that fact, the giving of evidence must inevitably be an event that will affect the relationship. It cannot be the same afterwards. The probabilities are that the effect will be adverse.
As to the issue of the harshness of compelling him to give evidence, he is unwilling to talk about events with people. This has been his defence mechanism. To compel him to give evidence would be to try to challenge that defence mechanism.
I am satisfied that he was very stressed by the prospect of giving evidence at the committal, sufficiently stressed that he had a very broken night notwithstanding that he was on sleeping pills. I am also satisfied that following the committal the expert advice was that he needed counselling to cope with the events and that that was availed of for some months.
I am also satisfied that the stress of giving evidence will also exacerbate his ADHD symptoms.
Conclusion
Having regard to the foregoing, I am satisfied that, in combination, the adverse impact on the relationship and the harshness of requiring Michael to give evidence in my opinion outweigh the interest of the community in having his evidence.
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