R v Stewart Barry John Mayhew
[2010] ACTSC 41
R v STEWART BARRY JOHN MAYHEW
[2010] ACTSC 41 (28 April 2010)
EX TEMPORE JUDGMENT
No. SCC 165 of 2009
Judge: Rares J
Supreme Court of the ACT
Date: 28 April 2010
IN THE SUPREME COURT OF THE )
) No. SCC 165 of 2009
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
STEWART BARRY JOHN MAYHEW
ORDER
Judge: Rares J
Date: 28 April 2010
Place: Canberra
THE COURT ORDERS THAT:
The application for an order under s 128(4) of the Evidence Act 1955 (Cth) be dismissed.
The accused has applied for an order under s 128(4) of the Evidence Act 1995 (Cth), that the complainant be required to give evidence in answer to questions concerning an allegation put to her that she had taken with her five ecstasy tablets when she and the accused left Canberra to attend a rave party in Sydney on the night before the incident the subject of the indictment, namely that the accused on 29 June 2008 assaulted the complainant and occasioned her actual bodily harm. The complainant said that she did not wish to answer the question on the ground that the answer might tend to criminate her.
I am satisfied that any evidence given in answer to such a question would not tend to prove that she had committed an offence against or arising under, or that she would be liable to a civil penalty under, a law of a foreign country. Indeed, all the events occurred within the Australian Capital Territory and New South Wales. The grant of a certificate under s 128(5) of the Evidence Act (Cth) would protect her from any risk of exposure to a prosecution or civil penalty in either of those two jurisdictions.
The real question is whether or not it is in the interests of justice to require the complainant to give evidence relating to the issue of her alleged possession of an illegal drug. Part of the accused’s explanation to justify his application to compel the complainant to give such evidence is said to be the assistance it would provide the jury in the evaluation of the complainant’s evidence. In substance, the accused wishes to put before the jury an argument based on the effect of whatever ecstasy tablets the complainant might admit having consumed in the period of about 16 hours prior to the alleged assault may have had on her ability to recall or give accurate evidence about the events, the subject of the charge. The accused also wishes to put that the reliability of the complainant’s account of events, both before and at the time of the incident, would be better assessed by the jury with them being able to know whether or not ecstasy had played any role in her behaviour, reactions and perceptions during that time.
The complainant has said that she is an assistant in nursing and, as I understand it, is pursuing a career in the nursing industry. I have not had any assistance from counsel (this is not a criticism) as to the factors to be taken into account in exercising my discretion on the question of whether, in the present circumstances, the interests of justice require that a witness give evidence after refusing to do so on the ground that answers may tend to criminate her. The evidence may possibly have some capacity to inform the jury of a potential circumstance that may be relevant. However, it is not proposed to lead any evidence as to the pharmacological or other effects upon a person’s mind, memory or understanding from the consumption of ecstasy, or in relation to any time period during which any ecstasy consumed may have had an effect on the ability of a person in the position of the complainant to recall accurately, at least, the events the subject of the charge.
Moreover, generalised evidence as to pharmacological or other impacts of drugs or alcohol is not a particularly good or accurate guide as to the impact of ingestion of such a substance on a particular individual with his or her physical characteristics: Acama Pty Ltd v Ellis [2010] HCA 5 at [62] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; State Government Insurance Commission v Laube (1984) 37 SASR 31 at 32-33 per King CJ.
A very important right enjoyed by individuals in our society is that they are not compellable to give evidence in respect of matters that may tend to incriminate them or to expose them to a civil penalty. This fundamental right can only be overridden in the present circumstances were I satisfied for the purposes of s 128(4)(b), that it is in the interests of justice to do so.
I am not satisfied that it would be possible to protect the complainant from all possible consequences on her future career were she required to answer questions about her alleged possession of and taking of illegal drugs, if, indeed, that were what had happened.
On the material at least presently available in the trial, I am of opinion that the issues will be able to be presented to the jury in a way that does not require a conclusion that it would be in the interests of justice to override the privilege of the complainant to refuse to answer questions, the answers to which might tend to incriminate her.
The jury has observed her exercising that right in respect of the question put to her. It will be a matter for address as to how any use may be made of those matters that the jury has already observed. I am not satisfied, at this point, on the material before me, that it is in the interests of justice to require the complainant to give evidence concerning her alleged possession or consumption of ecstasy as proposed. I decline to order her to do so.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Rares
Associate:
Date:10 May 2010
Counsel for the Crown: Ms S McMurray
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the Accused: R Livingston
Solicitor for the Accused: Legal Aid Office (ACT)
Date of hearing: 28 April 2010
Date of judgment: 28 April 2009
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