R v Martin (No 10) - [2017] NSWSC 1401

Supreme Court

New South Wales

Medium Neutral Citation: R v Martin (No 10) [2017] NSWSC 1401
Hearing dates: 11 October 2017
Date of orders: 11 October 2017
Decision date: 11 October 2017
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Pursuant to s 128(2) Evidence Act, determine that there are reasonable grounds for the objection made by the witness Jessica Fallon.
(2) The witness is not required to give evidence pursuant to s 128(4) Evidence Act on the grounds that the interests of justice do not require that she be so required.
Catchwords: CRIMINAL LAW – evidence – privilege against self-incrimination – whether witness should be compelled to give evidence – where witness has criminal trial for same offences pending – fundamental alteration of accusatorial system – where admissions made by witness tending to exculpate accused adduced in defence case – interests of justice – where Crown does not seek hearsay direction – where counsel concerned that witness may prejudice accused’s trial – where steps to quarantine evidence undesirable
Legislation Cited: Evidence Act 1995 (NSW), s 128
Cases Cited: Gedeon v The Queen [2013] NSWCCA 257; 237 A Crim R 306
Lee v R (2014) 253 CLR 455: [2014] HCA 20
R v Mujuevic, Saliba, Rymer, Cusens [2017] NSWDC 215
R v Qaumi & Ors (No 31) [2016] NSWSC 674
R v Simmons (No 6) [2016] NSWSC 418
R v X [2014] NSWCCA 168
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
Texts Cited: S Odgers, Uniform Evidence Law (12th Ed, 2016, Thomson Reuters)
Category: Procedural and other rulings
Parties: Regina (Crown)
Micheal Phillip Martin
Representation:
Counsel:
Mr B Campbell (Crown)
Mr G D Wendler (M P Martin)
Mr P O’Connor (for the witness intervening)
Ms A Moen (written submissions for the witness)
Solicitors:
Director of Public Prosecutions (Crown)
Stuart Percy & Associates (M P Martin)
Blair Criminal Lawyers (J H Fallon)

File Number(s): 2015/78236; 2015/120687
Publication restriction: No publication until the conclusion of trial

EX TEMPORE Judgment (REVISED)

Jessica Fallon has been called as a witness by the accused who is charged with attempted murder of his father (count 1) and causing grievous bodily harm to an Ed or Eddie Manning with intent (count 2) in April 2014, and with the murder of his father in June 2014 (count 3).
The parties agreed that Ms Fallon should initially give evidence on the voir dire. She is represented by counsel today and her trial counsel has provided written submissions on the issue that arose today.
Ms Fallon was called to give evidence on the voir dire, took an oath and, after one or two anodyne introductory questions, raised an objection to giving evidence. This objection had been foreshadowed by her legal team from an early stage of the proceedings. Ms Fallon relies on the privilege against self-incrimination, both at common law and under s 128 of the Evidence Act 1995 (NSW).
On the Crown case, Ms Fallon may have been…

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 Martin (No 10)

Details

AGLC: R v Martin (No 10) [2017] NSWSC 1401
Case: [2017] NSWSC 1401
Decision Date: 11 October 2017

CaseChat Overview and Summary

The case of R v Martin (No 10) involved a legal dispute concerning the admissibility of evidence in a criminal trial. The defendant, Martin, faced charges, and a potential witness in his defence had pending criminal charges for the same offences. The witness had made admissions that were potentially exculpatory to Martin. The issue before the court was whether the witness should be compelled to give evidence in Martin's trial given these circumstances. The court needed to consider the principle of privilege against self-incrimination, the potential for prejudice to the accused's trial, and the interests of justice in determining the admissibility of the witness's evidence.

The legal issues encompassed the tension between the privilege against self-incrimination and the need for a fair trial. The court had to assess whether compelling the witness to testify would fundamentally alter the accusatorial system, as the witness's admissions could prejudice Martin's trial. Additionally, the court needed to consider whether the interests of justice would be served by allowing the witness to testify despite the potential prejudice to Martin's trial. The court also had to consider the Crown's decision not to seek a hearsay direction and the counsel's concerns regarding the potential prejudice to the accused's trial. The court further deliberated on the desirability of taking steps to quarantine the evidence, which could mitigate some of the risks associated with the witness's testimony.

The court held that compelling the witness to give evidence would indeed fundamentally alter the accusatorial system and potentially prejudice the accused's trial. Given that the Crown did not seek a hearsay direction and considering the counsel's concerns, the court determined that it was not in the interests of justice to compel the witness to testify. The court found that taking steps to quarantine the evidence was undesirable in this case, given the potential for significant prejudice to Martin's trial. Therefore, the court ruled against compelling the witness to give evidence in Martin's trial, protecting the accused's right against self-incrimination and maintaining the integrity of the accusatorial system.

The final order of the court was that the witness would not be compelled to give evidence in Martin's trial. The court's decision was grounded in the preservation of the fundamental principles of the accusatorial system and the need to protect the accused's right against self-incrimination. This ruling ensures that the trial process remains fair and balanced, safeguarding the interests of both the accused and the potential witness.

Orders