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

1. 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.

2. 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

3. 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.

4. 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].

5. 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 the Harman principle did not apply. In other words, an essential prerequisite for the principle to apply did not exist.

6. Counsel also referred to a decision of Berman J in the Family Court of Australia in the matter of Zarins & Mylne (No 3) [2013] Fam CA 737, where after his Honour referred to the Harman principle, he said at [27]:

“Accordingly, it is the coercive nature of the obligation imposed by the court for parties to disclose documents and make a full and frank discovery, that is, the foundation of the implied undertaking.”

7. In reply, the Crown submitted that the accused’s submissions were misconceived and that the decision of the Family Court of Australia in Zarins & Mylne, supra, went on to find that affidavits filed in the court were filed pursuant to orders of the court to ensure the matter was prepared and ready for trial. This was an integral part of the process in Family Court proceedings, namely, that affidavits must be filed in accordance with the directions of the court. The court went on to find that the Harman principle, namely, the implied undertaking, applied in that case.

8. I upheld the Crown objection for the following reasons:

1. The submission made on behalf of the accused, by relying on the description “coercive nature” of the obligation imposed by the court for parties to disclose documents, misconceived the fact that parties in the Family Court are compelled to file their evidence by way of affidavit to ensure that matters are ready to proceed to trial. That is in accordance with what the plurality held in Hearne v Street, supra, where they said at [96]:

“Where one party to the litigation is compelled, either by reason of a rule of the court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery …, and affidavits.”

The plurality went on to hold, at [105] and following, that the implied undertaking is an obligation of substantive law.

2. I accept the Crown’s submission that the decision of Berman J in Zarins & Mylne, supra, applies here. His Honour held that the nature of affidavit material in the Family Court proceedings had a compulsory nature, namely, that such material is filed with the intention and/or expectation that it would be evidence in the proceedings. Further the filing of affidavits was made pursuant to orders of the court which were an integral part of the court process, and parties were therefore compelled to do so. Therefore the affidavits concerned fell within the category of documents to which the Harman principle applied.

3. The same reasoning applies here. The affidavit sworn by LW on 10 December 2010 and filed in the Family Court proceeding is caught by the Harman principle, and may not be used in these proceedings without the leave of the Family Court of Australia.

9. I therefore ordered that the accused not be allowed to cross-examine LW further on the affidavit or tender it in the trial.

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Amendments

13 September 2019 - Catchwords changed to:

Application to cross-examine on affidavit filed in Family Court proceedings.

30 September 2019 - [8](3) Name anonymised to LW

[9] Name anonymised to LW

Decision last updated: 30 September 2019