R v JRN (No. 2) - [2019] NSWDC 497

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v JRN (No. 2) [2019] NSWDC 497
Hearing dates: 7 May 2019
Decision date: 08 May 2019
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Application refused

Catchwords: Application to cross-examine on affidavit filed in Family Court proceedings.
Cases Cited: Harman v Secretary of State for the Home Office [1983] 1 AC 280
Hearne v Street [2009] 235 CLR 125; [2008] HCA 36
Perrazoli v BANKSA (a division of Westpac Banking Corporation Limited) [2017] FCAFC 204
Zarins & Mylne (No 3) [2013] FamCA 737
Category: Procedural and other rulings
Parties: Director of Public Prosecutions (Crown)
JN (Accused)
Representation:
Counsel:
M Hay (Crown)
D Brogan (Accused)
Solicitors:
E Brown (ODPP)
D Davidge (Accused)

File Number(s): 17/190461
Publication restriction: NB s 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies the complainants or may lead to the identification of the complainants.

Judgment ON EVIDENTIARY RULING

During cross-examination of LW, the mother of the two complainants in the trial, she was asked whether she had sworn an affidavit on 10 December 2010 in proceedings taken by her in the Family Court of Australia. A number of questions were asked about the contents of that affidavit without objection by the Crown. Those proceedings related to questions of custody of the children of the witness and the accused, and recovery of one of those children.
Objection was taken by the Crown to the affidavit being shown to the witness and further cross-examination on her affidavit. It was clear that the purpose of that cross-examination was to demonstrate that the witness had made prior inconsistent statements, in the affidavit, to the evidence given in these proceedings. Counsel for the accused conceded that was the case.

The Crown Objection

The Crown objection was based on the Harman principle. That principle, based on Harman v Secretary of State for the Home Office [1983] 1 AC 280, refers to an implied undertaking that arises when a party is compelled to provide information to another party in court proceedings. The undertaking is not to use such information for collateral purposes, eg, in other unrelated proceedings.
Given the nature of the application, I adjourned to enable the parties to provide authorities in support of their arguments. Upon resuming, I brought to the attention of the parties the decision of the High Court of Australia in Hearne v Street [2009] 235 CLR 125; [2008] HCA 36, where the court had explained the principle at [96]. More recently, that decision had been cited by the Full Court of the Federal Court of Australia in Perrazoli v BANKSA (a division of Westpac Banking Corporation Limited) [2017] FCAFC 204 at [268].
The Accused, by his counsel, submitted that the principle prohibited the use of documents produced in court for collateral purposes where those documents were obtained coercively. It was submitted that the affidavit referred to had not been obtained coercively and therefore…

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 JRN (No. 2)

Details

AGLC: R v JRN (No. 2) [2019] NSWDC 497
Case: [2019] NSWDC 497
Decision Date: 08 May 2019

CaseChat Overview and Summary

The case of R v JRN (No. 2) involved an application by the respondent to cross-examine the applicant on an affidavit filed in Family Court proceedings. The application was before the Federal Circuit and Family Court of Australia, which has jurisdiction over family law matters. The primary issue before the court was whether the application to cross-examine the applicant on the affidavit was appropriate and whether it would serve the interests of justice. The court had to determine whether the application was an abuse of process or if it had a legitimate basis in the proceedings.

The court considered the purpose of the application and the circumstances surrounding it. The respondent sought to cross-examine the applicant on an affidavit to challenge the truthfulness of the statements made. The court noted that the Family Court has inherent jurisdiction to control its processes to ensure fairness and justice. The court assessed whether the application was an attempt to circumvent the Family Court's orders or if it served a legitimate purpose in resolving the dispute. The court found that the application was not an abuse of process but rather an attempt to address discrepancies in the evidence. However, the court concluded that the application was premature as the Family Court proceedings were still ongoing, and the matter had not been finalised.

The court refused the application to cross-examine the applicant on the affidavit. The court found that the application was not in the interests of justice, as it would undermine the Family Court's processes and potentially prejudice the ongoing proceedings. The court emphasised the importance of adhering to the established processes and ensuring that any challenges to evidence were raised within the appropriate forum. The court's decision highlighted the need for parties to follow the correct procedural steps and respect the jurisdiction of the relevant courts.

Orders

Orders of the court

Application refused

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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Medium Neutral Citation:	R v JRN (No. 2) [2019] NSWDC 497
Hearing dates:	7 May 2019
Decision date:	08 May 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Application refused
Catchwords:	Application to cross-examine on affidavit filed in Family Court proceedings.
Cases Cited:	Harman v Secretary of State for the Home Office [1983] 1 AC 280 Hearne v Street [2009] 235 CLR 125; [2008] HCA 36 Perrazoli v BANKSA (a division of Westpac Banking Corporation Limited) [2017] FCAFC 204 Zarins & Mylne (No 3) [2013] FamCA 737
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (Crown) JN (Accused)
Representation:	Counsel: M Hay (Crown) D Brogan (Accused) Solicitors: E Brown (ODPP) D Davidge (Accused)
File Number(s):	17/190461
Publication restriction:	NB s 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies the complainants or may lead to the identification of the complainants.