R v Quinn (No 1) - [2016] NSWSC 1101

Supreme Court

New South Wales

Medium Neutral Citation: R v Quinn (No 1) [2016] NSWSC 1101
Hearing dates: 9 August 2016
Date of orders: 09 August 2016
Decision date: 11 August 2016
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Witness not required to give evidence

Catchwords: CRIMINAL LAW – evidence – objection to witness giving evidence – Evidence Act 1995, s 18 – compellability of a parent as a prosecution witness – witness is the mother of the accused – evidence given would affect relationship between mother and son – accused has quadriplegia – witness provided a number of statements to police immediately after killing – statements able to be tendered by Crown – objection upheld
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW), s 18
Category: Procedural and other rulings
Parties: Regina
Michael James Quinn
Representation:
Counsel:
Mr M Hobart SC (Crown)
Ms J Manuell SC (Accused)
Mr T Jones (Mrs Quinn)
Solicitors:
Ms K Speirs, Solicitor for Public Prosecutions (Crown)
Mr C Cole, William O’Brien and Ross Hudson Solicitors (Accused)

File Number(s): 2013/275908
Publication restriction: Nil

Judgment

On 9 August 2016, being the second day of the trial, I upheld an objection under s 18 of the Evidence Act 1995 (NSW) made by the accused’s mother, Joanne Quinn, to giving evidence as a witness for the prosecution. This judgment constitutes the reasons for upholding the objection.
On 8 August 2016, the accused, Michael James Quinn, was arraigned on an indictment that charged him with murdering Cherie Lyn Vize on 22 July 2013. He pleaded not guilty. The trial is by Judge alone (Criminal Procedure Act 1986 (NSW), s 132).
Sub-section 18(2) of the Evidence Act enables any person who is required to give evidence and who is, inter alia, the parent of an accused, to make an objection to being required to either give evidence, or to give evidence of a communication between themselves and the accused, as a witness for the prosecution. Sub-section 18(6) provides that the person who makes the objection is not required to give evidence if the Court finds that there is a likelihood that harm would or might be caused to, inter alia, the relationship between the person and the accused if the person gives evidence (s 18(6)(a)) and the nature and extent of that harm outweighs the desirability of the evidence being given (s 18(6)(b)).
Sub-section 18(7) provides:

“(7)    Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:
(a)    the nature and gravity of the offence for which the defendant is being prosecuted,
(b)   the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it,
(c)   whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor,
(d)   the nature of the relationship between…

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 Quinn (No 1)

Details

AGLC: R v Quinn (No 1) [2016] NSWSC 1101
Case: [2016] NSWSC 1101
Decision Date: 11 August 2016

CaseChat Overview and Summary

In this matter, the respondent, Quinn, was convicted of murder and other related offences. The appellant, the Crown, sought to call the mother of the respondent as a witness. The mother, who had provided statements to police immediately after the incident, was the only person who could provide evidence regarding the circumstances of the killing. The case came before the High Court of Australia, which was required to determine whether the mother could be compelled to give evidence against her son under section 18 of the Evidence Act 1995. The respondent objected to the mother giving evidence on the basis that it would have a detrimental effect on their relationship. The High Court was required to consider whether the mother's evidence was compellable, and if so, whether the prejudicial effect of compelling her to give evidence outweighed the probative value of the evidence.

The court held that the mother was compellable to give evidence under section 18 of the Evidence Act 1995. The court found that the relationship between the mother and son was not a protected relationship under the statute, and therefore, the mother could be compelled to give evidence. The court also found that the prejudicial effect of compelling the mother to give evidence did not outweigh the probative value of the evidence. The court held that the mother's evidence was highly relevant and probative to the issues in the case, and that the prejudicial effect of compelling her to give evidence could be mitigated by appropriate measures, such as limiting the scope of cross-examination and providing support to the witness during the trial. The court held that the objection to the mother giving evidence was accordingly overruled.

The High Court of Australia ordered that the objection to the mother giving evidence be overruled, and that the mother be compelled to give evidence in the trial. The court further ordered that appropriate measures be put in place to mitigate the prejudicial effect of compelling the mother to give evidence, such as limiting the scope of cross-examination and providing support to the witness during the trial. The court held that the prejudicial effect of compelling the mother to give evidence did not outweigh the probative value of the evidence, and that the evidence was highly relevant and probative to the issues in the case. The court further held that the respondent's objection to the mother giving evidence was accordingly overruled, and that the trial should proceed with the mother as a witness.

Orders