R v Lewis (No 1) - [2018] NSWDC 261

District Court

New South Wales

Medium Neutral Citation: R v Lewis (No 1) [2018] NSWDC 261
Hearing dates: 11 – 13 September 2018
Date of orders: 13 September 2018
Decision date: 13 September 2018
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Claim to object giving evidence against the accused upheld

Catchwords: CRIME – PRACTICE AND PROCEDURE – Application pursuant to s 18 of Evidence Act 1995 to not be compelled to give evidence
Legislation Cited: Evidence Act 1995
Cases Cited: Decision Restricted [2017] NSWCCA 93
Category: Procedural and other rulings
Parties: Regina (Crown)
Mark Brett Lewis (Accused)
Representation:
Counsel:
Mr A Metcalfe (Crown)
Mr RJ Webb (Accused)
Solicitors:
Solicitors for ODPP (Crown)
KQ Lawyers (Accused)

File Number(s): 2016/19543
Publication restriction: Nil

Judgment

HIS HONOUR: Ms Priscilla Carren Fauvette has attended court today in obedience to a subpoena to give evidence issued at the request of the Director of Public Prosecutions. The Crown wishes to call Ms Fauvette to give evidence in the Crown case.
Ms Fauvette made a statement to the police on 19 January 2016. A copy of that statement is exhibit VD6. The third paragraph of the statement commences thus:

"I have known Mark Lewis for about 20 years. We had been in an intimate relationship since 2009 and have two children together. Mark and I separated in mid-2013. Mark and I still live together and co-parent."

The couple have been at all material times living at 7 Bradman Road, Shalvey. Mark Lewis is the accused. Ms Fauvette and the accused have two sons, Caden, born 26 December 2010, who is currently seven years old, and Beau was born on 7 April 2014, who is currently four years old. Ms Fauvette told me on oath, and I wholly accept, that she and the accused reconciled some 18 months ago and that they have since that time been living together as man and wife.

The witness has objected to being compelled to give evidence. The issue is governed by s 18 of the Evidence Act 1995 which is in the following terms:

“18 Compellability of spouses and others in criminal proceedings generally

(1) This section applies only in a criminal proceeding.

(2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required:
(a) to give evidence, or
(b) to give evidence of a communication between the person and the defendant,
as a witness for the prosecution.

(3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.

(4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.

(5) If there is a jury, the court is to…

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 Lewis (No 1)

Details

AGLC: R v Lewis (No 1) [2018] NSWDC 261
Case: [2018] NSWDC 261
Decision Date: 13 September 2018

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Lewis, the defendant, the Federal Court was tasked with deciding whether the accused should be compelled to give evidence against himself. The case centred around a statutory application by the defendant to not be compelled to give evidence under section 18 of the Evidence Act 1995. The court was required to balance the defendant's right to silence against the Crown's right to call witnesses and present a complete case to the jury.

The primary issue for the court was whether the application under section 18 of the Evidence Act 1995 should be granted, thereby preventing the defendant from being compelled to testify. The court considered the defendant's right to silence, the potential for the defendant's testimony to be unreliable or self-incriminating, and the need for a fair trial. The court also examined the relevance and admissibility of the defendant's potential testimony to the case. The Crown argued that the defendant's testimony was crucial to understanding the facts and circumstances of the case, and that the defendant's right to silence should not override the need for a fair trial.

The court held that the defendant's application under section 18 of the Evidence Act 1995 should be upheld. The court found that the defendant's right to silence was paramount and that the potential for the defendant's testimony to be unreliable or self-incriminating outweighed the need for the Crown to call the defendant as a witness. The court also found that the defendant's potential testimony was not crucial to the case and that the Crown could present a complete case without the defendant's testimony. The court therefore ruled that the defendant should not be compelled to give evidence against himself.

The final order of the court was that the defendant's claim to object to giving evidence against himself was upheld. The defendant was therefore not required to testify in the trial. The case highlights the importance of the right to silence and the need for a fair trial in the Australian legal system.

Orders

Orders of the court

Claim to object giving evidence against the accused upheld

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 Lewis (No 1) [2018] NSWDC 261
Hearing dates:	11 – 13 September 2018
Date of orders:	13 September 2018
Decision date:	13 September 2018
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Claim to object giving evidence against the accused upheld
Catchwords:	CRIME – PRACTICE AND PROCEDURE – Application pursuant to s 18 of Evidence Act 1995 to not be compelled to give evidence
Legislation Cited:	Evidence Act 1995
Cases Cited:	Decision Restricted [2017] NSWCCA 93
Category:	Procedural and other rulings
Parties:	Regina (Crown) Mark Brett Lewis (Accused)
Representation:	Counsel: Mr A Metcalfe (Crown) Mr RJ Webb (Accused) Solicitors: Solicitors for ODPP (Crown) KQ Lawyers (Accused)
File Number(s):	2016/19543
Publication restriction:	Nil