R v Hartwick (No 5)

Case [2002] VSC 479


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
Mr D. Hallowes

Kay Robertson
Solicitor for Public Prosecutions
For Michael Knight Ms C. Randazzo Victoria Legal Aid

HIS HONOUR:

Application

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

  1. 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.

  1. 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

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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. 

  1. Michael Knight's VATE evidence varies and is…

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R v Hartwick (No 5) [2002] VSC 479
Case
[2002] VSC 479
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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