R v YL

Case [2004] ACTSC 115 27 October 2004

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R v YL [2004] ACTSC 115 (27 October 2004)

COURTS AND THE JUDICIAL SYSTEM – whether discretion to refuse to exercise coercive powers to compel 7 year old child to enter court and give evidence against his will – evidence by psychiatrist that forcing the child to do so could cause significant harm – application by Crown to discharge jury in order to test rulings of trial judge – attempt to enter nolle prosequi in order to test rulings – general principles – relevance of rights guaranteed by Human Rights Act 2004 (ACT).
EVIDENCE – objection under s 18 of the Evidence Act 1995 (Cth) to giving evidence – whether s 19 precludes the application of s 18 to “domestic violence offences” mentioned in s 9 of the Protection Orders Act 2001 (ACT) – application of s 10A of the Acts Interpretation Act 1901 (Cth) – whether 7 year old child compellable – whether discretion to refuse to exercise coercive powers to force child to enter court and give evidence against his will – relevance of rights guaranteed by Human Rights Act 2004 (ACT).

EVIDENCE – whether child an “unavailable” witness when court refuses to compel him to enter court and give evidence – whether evidence of prior representations by the child admissible under s 65 of the Evidence Act 1995 (Cth)– whether rejection of such evidence required by s 137 of the Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth), ss 18, 137, 19, 8, 65, 67, 63(2), 64(2), 65(2,3,8)
Director of Public Prosecutions Act 1990 (ACT), s 7(6)
Crimes Act 1900 (ACT), ss 287, 402
Domestic Violence Act 1986 (ACT)
Domestic Violence Agencies Act 1986 (ACT)
Protection Orders Act 2001(ACT), schedule 1, s 9
Acts Interpretation Act 1901 (Cth), s 10A
Supreme Court Act 1933 (ACT), 20, 37S
Human Rights Act 2004 (ACT), s 11, 30(1), 30(3), 21, 22
Legislation Act 2001 (ACT), 139
Criminal Code Act 1989 (Qld), s 669A

R v Wright [2004] ACTSC 83
Mechanical & General Inventions Co. Ltd and Lehwess v Austin and Austin Motor Co. (1935) A.C. 346
Question of Law Reserved on Acquittal Case (No 3 of 1995) (1996) 66 SASR 450
Broome v Chenoweth (1946) 73 CLR 583
Poole v The Queen (1961) AC 223
Barton v The Queen (1980) 147 CLR 75
Maxwell v The Queen (1996) 135 ALR 1
Jago v The District Court of New South Wales (1989) 168 CLR 23
Williams v Spautz (1992) 174 CLR 509
Walton v Gardiner (1993) 177 CLR 378
R v Jell, ex parte Attorney-General (1991) 1 Qd R 48
R vFerguson,ex parte Attorney-General [1991] 1 Qd R 35
Doylev R (1988) 2 Qd R 434

Colman QC, G., Cross Examination; A Practical Handbook, Juta & Co. Ltd., Cape Town, 1970
Jeremy Bentham, Rationale of Judicial Evidence, Specially applied to English Practice, Vol 5, London, Hunt & Clark, 1827
Firak, N.L., ‘Ethical Fictions as Ethical Foundations: Justifying Professional Ethics’ (1986) 24 Osgoode Hall L. J

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.

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Details

AGLC: R v YL [2004] ACTSC 115
Case: [2004] ACTSC 115
Decision Date

CaseChat Overview and Summary

R v YL [2004] ACTSC 115 involved a case against a woman charged with assaulting her six-year-old stepson. The child was represented separately by counsel to protect his interests. The trial judge, Crispin J, ruled that the child could not object to giving evidence as per section 18 of the Evidence Act 1995 (Cth) because section 19 of the Act precluded its application to domestic violence offences. However, the court retained discretion not to compel the child to give evidence against his will due to the potential for significant harm. The Crown attempted to enter a nolle prosequi to test the judge's rulings but the judge ruled that this constituted an abuse of process and refused to permit it to be entered into the record. The judge ordered that verdicts of acquittal be entered pursuant to section 287 of the Crimes Act 1900 (ACT).

Orders