Tran v R

[2017] NSWCCA 93

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Tran v R [2017] NSWCCA 93

Hearing dates:

1 March 2017

Decision date:

17 May 2017

Before:

Macfarlan JA at [1];
Schmidt J at [34];
Wilson J at [60]

Decision:

(1)   Grant leave to appeal to Ms Anh Thu Tran and to Mr Ba Bao Tran.
(2)   Allow the appeals.
(3) Order pursuant to s 5F(5)(a) of the Criminal Appeal Act that the ruling of Pickering DCJ dated 19 October 2016 requiring Mr Tran to give evidence as a witness for the prosecution in the trial of Ms Tran be vacated.
(4) Remit Mr Tran’s objection under s 18(2) of the Evidence Act to the District Court for determination in accordance with law.

Catchwords:

CRIMINAL LAW – evidence – compellability of witnesses – objection by accused’s father to giving evidence for the prosecution against accused – s 18(2) Evidence Act 1995 (NSW) – whether trial judge satisfied himself that prospective witness was “aware of the effect” of s 18 as required by s 18(4)

 

PRACTICE AND PROCEDURE – interlocutory appeals – ‘judgment or order’ – application for leave to appeal under s 5F(3)(a) Criminal Appeal Act 1912 (NSW) – applicant’s father objected to giving evidence against the applicant – primary judge’s ruling that the applicant was a compellable witness was a ‘judgment or order’ for the purposes of s 5F(3)

 

PRACTICE AND PROCEDURE – interlocutory appeals – s 5F(3) Criminal Appeal Act 1912 (NSW) – a “party” may seek leave to appeal – objection by accused’s father to giving evidence for prosecution against accused rejected – s 18 Evidence Act 1995 (NSW) – prospective witness a “party” for the purposes of s 5F(3)

WORDS AND PHRASES – “party” – s 5F(3) Criminal Appeal Act 1912 (NSW) – a “party” may seek leave to appeal

Legislation Cited:

Criminal Appeal Act 1912 (NSW) s 5F
Criminal Procedure Act 1986 (NSW) Ch 6, Pt 5, Div 2
Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) ss 17, 18, 128, 132
Interpretation Act 1987 (NSW) s 33
Legal Practitioners Act 1898 (NSW) s 77(1)
National Health Act 1953 (Cth)
Supreme Court Act 1970 (NSW) s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW) r 36.16(2)(b)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156
Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Construction Forestry Mining and Engineering Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1; [2016] HCA 41
Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 89 NSWLR 110; [2015] NSWCA 85
In the matter of Bauhaus Pyrmont Pty Ltd (in liq) (2006) 67 NSWLR 289; [2006] NSWSC 879
JP Morgan Chase Bank v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31
Law Society of New South Wales v Jackson [1981] 1 NSWLR 730
Osborne v R (2014) 238 A Crim R 417; [2014] NSWCCA 17
Project Blue Sky Inc. & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Abdullah [1999] NSWCCA 188
R v Ahmed [2001] NSWCCA 450
R v RAG [2006] NSWCCA 343
Regina v Keeling (Court of Criminal Appeal (NSW); Cole JA, Smart and James JJ, 5 September 1996, unrep)
Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52
Yakmor v Hamdoush (No 2) [2009] 76 NSWLR 148; [2009] NSWCA 284

Texts Cited:

Lesley Brown (ed), New Shorter Oxford English Dictionary on Historical Principles, (4th ed 1993, Oxford University Press) Vol 1
D C Pearce and R S Geddes, Statutory Interpretation in Australia, (8th ed 2014, LexisNexis)

Category:

Principal judgment

Parties:

Anh Thu Tran (Applicant)
Regina (Respondent)
Ba Bao Tran (Proposed Intervener)

Representation:

Counsel:
Mr I McLachlan (Applicant)
Mr D Kell SC / Mr M Pulsford (Respondent)
Mr A Chhabra (Proposed Intervener)

  Solicitors:
Blair Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2014/295040

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 October 2016

Before:

Pickering DCJ

File Number(s):

2014/295040

Judgment

1. MACFARLAN JA: Ms Anh Thu Tran seeks leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) against a ruling of Pickering DCJ of 19 October 2016. His Honour declined to uphold an objection by Ms Tran’s father, Mr Ba Bao Tran, under s 18(2) of the Evidence Act 1995 (NSW) to giving evidence as a witness for the prosecution in proceedings on indictment against Ms Tran.

2. Ms Tran seeks leave to appeal on the ground that the primary judge failed to satisfy himself in accordance with s 18(4) of the Evidence Act that Mr Tran was “aware of the effect of s 18”. Ms Tran contends that the absence of that satisfaction vitiated his Honour’s rejection of Mr Tran’s objection. In addition, Mr Tran himself seeks leave to appeal in his own name or alternatively leave to intervene in his daughter’s application for leave to appeal and, if leave is granted, her appeal.

3. The Crown takes a preliminary objection that his Honour’s ruling in the District Court did not constitute an interlocutory “judgment or order” in relation to which leave to appeal could be sought (s 5F(3) of the Criminal Appeal Act). Further, it contends that Mr Tran has no right to seek leave to appeal in his own name and it opposes his application to intervene. If it is unsuccessful on these preliminary points, the Crown contends that there was no error in the primary judge’s application of s 18 of the Evidence Act.

4. Before turning to these issues, I refer to the relevant legislation and to the decision at first instance.

Relevant legislation

5. Section 18 of the Evidence Act 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 hear and determine any objection under this section in the absence of the jury.

(6)   A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:

(a)   there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and

(b)   the nature and extent of that harm outweighs the desirability of having the evidence given.

(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 the defendant and the person,

(e)   whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.

(8)   If an objection under this section has been determined, the prosecutor may not comment on:

(a)   the objection, or

(b)   the decision of the court in relation to the objection, or

(c)   the failure of the person to give evidence.”

6. Section 5F of the Criminal Appeal Act is in the following terms:

“5F Appeal against interlocutory judgment or order

(1) This section applies to:

(a)   proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and

(b) proceedings under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and

(c) proceedings in Class 5 of the Land and Environment Court’s jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979).

(2)   The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.

(3)   Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings:

(a)   if the Court of Criminal Appeal gives leave to appeal, or

(b)   if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal.

(3AA) A person who is not a party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against a decision in those proceedings to grant leave under Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 or a determination in those proceedings that a document or evidence does not contain a protected confidence within the meaning of that Division, if the person is:

(a)   a person who, because of the leave, is required to produce a document or adduce evidence that contains a protected confidence, or

(b)   a protected confider in relation to a protected confidence that may be produced or adduced because of the leave, or

(c)   a person who claims the document or evidence does, despite the determination, contain a protected confidence in relation to which the person is a protected confider.

(3AB)   An appeal under subsection (3AA) may be made whether or not an appeal has been made by a party to the proceedings, but only if:

(a)   the Court of Criminal Appeal gives leave to appeal, or

(b)   the judge or magistrate of the court of trial certifies that the decision is a proper one for determination on appeal.

(3A)   The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case.

(4)   An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.

(5)   The Court of Criminal Appeal:

(a)   may affirm or vacate the judgment, order, decision or ruling appealed against, and

(b)   if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against.

(6)   If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.

(7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Crimes (Appeal and Review) Act 2001.”

The proceedings at first instance

7. The indictment against Ms Tran charged her with an offence of possessing a precursor substance intended to be used in the manufacture of a prohibited drug (s 24A(1)(a) Drug Misuse and Trafficking Act 1985 (NSW)). The Crown subpoenaed Mr Tran, intending to call him as a witness for the prosecution to give evidence of observations that he made of activities of his daughter and her boyfriend (an alleged co-offender). As he was entitled to do, Mr Tran objected to giving evidence (s 18(2) of the Evidence Act). The primary judge then embarked on a hearing to determine in accordance with s 18 whether the objection should be upheld or rejected.

8. At that hearing Mr Tran gave evidence through an interpreter, including the following:

Q.   Mr Tran, has anyone spoken to you about your right to object to giving evidence in this trial against your daughter?

A.   INTERPRETER: Yes, your Honour.

Q.   Is it either of the lawyers here sitting at the bar table in front of me who have spoken to you about it?

A.   INTERPRETER: Yes.

Q.   Have you spoken to any other lawyer, not being any of the lawyers at the bar table about your right to object to giving evidence?

A.   INTERPRETER: No, your Honour.

Q.   Why don’t you want to give evidence against your daughter?

HIS HONOUR: Were you able to get all that Mr Interpreter?

INTERPRETER: Yes.

A.   INTERPRETER: Your Honour, something unfortunate, you know, happening in my family. And then as you know that as a father, you know, I don’t want to be in the witness box to do any harm to my daughter. But it’s up to you, and according to the Australian law, if I will be required to be in the witness box, it’s up to you.

…

CROWN PROSECUTOR:

Q.   Sir, after the reunification of the family in Australia up until today, would you agree that the relationship between yourself and Annie has strengthened, it’s improved?

A.   INTERPRETER: Not really, sir, simply because, you know, that they do not fully understand, you know, me and my situation, so that’s the reason why, at the moment, they are, you know, living away from me, separately.

Q.   Sir, by your situation, do you mean those experiences that you’ve had in your life before, including being captured in the war?

A.   INTERPRETER: Yeah. Simply because you know that during the war and our family has been somewhat, you know, destroyed, and until now I cannot re-establish the harmonious relationship, you know, with my family.

Q.   That’s something that you would like to do? You would like to restore that?

A.   INTERPRETER: Yes. I do. I really do. And that’s one reason why I do not want to be in – in this witness box, you know, against her, because it’s wouldn’t do anything – anything, you know.”

9. In his reasons of 19 October 2016, the primary judge referred to the Crown case concerning the alleged offence and concluded that Mr Tran’s evidence would be “potentially crucial” at the trial. His Honour then noted that Mr Tran had not been separately legally represented on his objection to giving evidence, but said that he and counsel for the parties had sought “to get the best evidence possible about the reasons that [Mr Tran] did not wish to give evidence in these proceedings”. His Honour then referred in some detail to the nature and history of Mr Tran’s relationship with his daughter and concluded:

“… parliament … made it clear that there will be circumstances where the evidence is more important in the grand scheme of the matter than protecting the relationship between, in this case, a father and a daughter. That is why so often, it is referred to as a balancing test. But I make clear that I readily accept on the evidence before me that there is a likelihood or a possibility that harm could be caused to the relationship between Mr Tran and the accused. That his desire is that their relationship strengthen, that they be closer, and that there be more re-engagement between them could be damaged by his evidence in these proceedings. I am satisfied that s. 18(6)(a) is made out.”

10. That being the case, his Honour proceeded, taking into account the factors listed in s 18(7), to consider whether Mr Tran should nevertheless be required to give evidence. His Honour concluded that he should.

Whether ruling “an interlocutory” judgment or order”

11. Under s 5F(2) of the Criminal Appeal Act, the Attorney General and the Director of Public Prosecutions may appeal (without leave) against “an interlocutory judgment or order”. Under s 5F(3A) they may also appeal against “any decision or ruling on the admissibility of evidence”. Any other “party” may only appeal against “an interlocutory judgment or order”, and then only if the Court of Criminal Appeal gives leave to appeal or “the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal” (s 5F(3)).

12. In R v RAG [2006] NSWCCA 343 the Director of Public Prosecutions appealed against a trial judge’s ruling that a female complainant aged 7 years and 10 months was not competent to give evidence (see s 13 of the Evidence Act). Latham J (with whom McClellan CJ at CL and Johnson J agreed) held that the Director did not have a right of appeal under s 5F(3A) of the Criminal Appeal Act because the ruling was not one “on the admissibility of evidence”. However her Honour found that it was “an interlocutory judgment or order”, with the result that the Director had a right of appeal under s 5F(3). Her Honour held that the trial judge’s decision “was a judicial act that determined an identifiable or separate part of the proceedings, namely the competency of the complainant” and that the judgment was interlocutory because “it did not finally determine the proceedings between the Director and the respondent” ([15]).

13. The conclusions in RAG are equally applicable to the present case. There is no presently material distinction to be drawn between a finding that a witness is not competent to give evidence by reason of s 13 of the Evidence Act, and a ruling pursuant to s 18 of the Evidence Act that a person in a defined relationship (in this case, parent and child) is compellable to give evidence as a witness for the prosecution. Pickering DCJ’s ruling was thus a “judgment or order.” The Crown does not suggest that it was not interlocutory.

14. The decision in RAG is consistent with the earlier decision of this Court in Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 in which it was held that a ruling rejecting a claim of public interest immunity and ordering that documents be produced to the Court by a third party was an interlocutory order within the meaning of s 5F. It is also consistent with the recent decision of Nettle J in Construction Forestry Mining and Engineering Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1; [2016] HCA 41 at [25] that “a determination by a judge of the Federal Court to refuse an application for leave to file a document is a judicial determination (an interlocutory judgment made in exercise of the original jurisdiction of the Federal Court) which is subject to appeal by leave”. To the same effect is the decision in Osborne v R (2014) 238 A Crim R 417; [2014] NSWCCA 17 at [3] in which this Court found that a ruling in the District Court setting aside a subpoena was an “interlocutory judgment or order” within the meaning of s 5F(2) of the Criminal Appeal Act.

Mr Tran’s standing

15. As I have noted, Mr Tran seeks leave to appeal against the primary judge’s ruling. Alternatively, he seeks leave to intervene in Ms Tran’s application for leave to appeal.

16. For Mr Tran to have a right to seek leave to appeal he must have been a “party” to the proceedings below (see the terms of s 5F(3) quoted in [6] above). There is no good reason to adopt a narrow definition of the word “party”, which would deprive some persons who are directly affected by orders made below of a right to challenge them. To the contrary, one would expect all such persons to have such a right.

17. In my view, the approach taken by the Court of Appeal in Law Society of New South Wales v Jackson [1981] 1 NSWLR 730 is applicable in the present context. In that case the Court concluded that because the Council of the Law Society had participated in proceedings before the Statutory Committee it was, although not a party named as such on the record, comprehended by the words “any party” in s 77(1) of the Legal Practitioners Act 1898 (NSW). The consequence was that the Statutory Committee was able to make an order for costs against the Law Society. Samuels JA (with whom Reynolds and Mahoney JJA agreed) adopted the definition of “party” to be found in Jowirt’s Dictionary of English Law in holding that a party “essentially, is a person who takes part in legal proceedings” (at 735).

15. This decision was followed in In the matter of Bauhaus Pyrmont Pty Ltd (in liq) (2006) 67 NSWLR 289; [2006] NSWSC 879 at [13]-[14] per Austin J; Yakmor v Hamdoush (No 2) [2009] 76 NSWLR 148; [2009] NSWCA 284 at [39] per Giles JA (with whom Ipp and Tobias JJA agreed) and in JP Morgan Chase Bank v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31 at [140]-[147] per Beazley P (with whom Gleeson JA and I relevantly agreed). In the last mentioned case the Court found that companies that had not been formally joined to proceedings were each a “party” within the meaning of r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 and thus had standing to apply to set aside orders made in the proceedings.

16. The conclusion which I have reached is consistent with Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52 in which the Court of Appeal held that a subpoenaed witness, dissatisfied with the outcome of an application for a pseudonym order, had standing to seek leave to appeal under s 101(2)(e) of the Supreme Court Act 1970 (NSW). Unlike s 5F(3), that provision does not limit entitlement to seek leave to appeal to a “party”. Nonetheless the Court’s conclusion that the witness was “a person aggrieved”, with consequent standing to seek leave to appeal, is consistent with the rejection of a narrow construction of the word “party” in s 5F(3). Witness v Marsden was followed in Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 89 NSWLR 110; [2015] NSWCA 85 where it was held that a creditor who was not on the record as a party to proceedings was entitled to seek leave to appeal from an ex parte order made by the primary judge on the application of liquidators of two companies. The creditor was found to be a person aggrieved who had standing to invoke s 101 of the Supreme Court Act.

17. These authorities justify the conclusion that a person who participates in a hearing (for example, one to determine an objection under s 18 of the Evidence Act), in a manner analogous to that of a formally recorded party (for example, by leading evidence or making submissions) is a “party” for the purposes of an appeal provision such as s 5F(3) of the Criminal Appeal Act if the person is directly affected by orders made as a consequence of the hearing. This conclusion is appropriate even if the person is not formally recorded as a party.

18. In some cases the conclusion that a person has a right to seek leave to appeal can alternatively be reached by treating the word “party” as embracing a person who is formally recorded as a party, albeit only in relation to a limited part of the proceedings. Examples of persons in this category are defendants to cross-claims who are not otherwise parties to the proceedings, and respondents to notices of motion who are not otherwise parties to the proceedings. The status of such persons as “parties” is however qualified so as to limit their rights and obligations arising from that characterisation to the part of the proceedings in which they were recorded as parties. Likewise, persons who are parties only because of their participation in a limited part of the proceedings could not claim rights, or be subject to obligations, not referable to the part of the proceedings in which they participated.

19. Mr Tran is not in the second category that I have identified (a person recorded as a party in respect of a limited part of the proceedings) because the issue whether his objection under s 18 of the Evidence Act should be upheld or rejected was not determined on a notice of motion and he was not therefore named as a party to any such motion. However because the determination of the issue did involve his participation in that part of the proceedings he was in my view a “party” entitled under s 5F(3) to seek leave to appeal in respect of the determination.

20. I should add in conclusion that, contrary to the Crown’s submission, s 5F(3)(AA) does not require a different conclusion on this question. That section provides that “[a] person who is not a party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against [a] decision” concerning sexual assault communications privilege (see Criminal Procedure Act 1986 Chapter 6 Part 5 Division 2). In my view the legislature’s insertion into s 5F, by way of amendment in 2010, of a subsection in these terms does not indicate that a narrow meaning should be given to the word “party” in other subsections such as s 5F(3). The Crown’s argument to the contrary was to the effect that s 5F(3AA) implied that a person aggrieved by a decision on the issue with which that subsection is concerned would not otherwise have a right to appeal or seek leave to appeal against it because the word “party” in other subsections had a limited meaning.

21. However the insertion of the subsection was consistent with a legislative intent to remove doubt about such a person’s rights. It did not change what was otherwise the meaning of the word “party” where used elsewhere in the section. The authorities cited in D C Pearce and R S Geddes, Statutory Interpretation in Australia, (8th ed, 2014) at [3.35] do not identify any principle of statutory construction which would require a contrary conclusion.

22. In light of my conclusion that Mr Tran has a right to seek leave to appeal and my conclusion (below) that a grant of leave should be made, it is unnecessary to deal with the alternative argument that he has a right to intervene in Ms Tran’s application for leave to appeal.

Compliance with s 18 of the Evidence Act

26. Mr Tran had a right under s 18(2) of the Evidence Act to object to giving evidence as a witness for the prosecution because the prosecution was of his daughter. In accordance with s 18(3), he was given timely notice of this right. The point at issue is however whether the trial judge satisfied himself that Mr Tran was “aware of the effect of [the] section” as it applied to Mr Tran. This step was important because Mr Tran was entitled to lead evidence and make submissions relevant to the Court’s decision as to whether to overrule his objection and require him to give evidence. In making that decision the Court was required to take into account the five factors identified in s 18(7), all of which were capable of being addressed by evidence and submissions.

27. In my view, to be “aware of the effect” of the section in accordance with s 18(4) the prospective witness needs to be aware not only of his or her right to object but also:

1. That the court will decide whether or not the objection should be overruled and the person required to give evidence;

2. That that decision will be based upon the court’s findings concerning the matters referred to in subsection (6), of which the judge should apprise the witness.

3. That in making its decision the court will take into account at least the five matters referred to in subsection (7), of which the judge should again apprise the witness.

28. Unless the prospective witness is aware of these matters, he or she will not know to what issues his or her evidence and submissions should be directed in an attempt to persuade the court of the force of the objection to giving evidence. Where the prospective witness is represented by a solicitor or counsel it will usually be sufficient for the judge to ask the representative to confirm that the person is aware of the relevant matters. Where, as here, the person is unrepresented, an explanation of the matters to which I have referred will need to be given.

29. Usually it would not be sufficient for the judge to have counsel acting for the accused confirm that the prospective witness is aware of the relevant matters if the counsel is not also acting for that person. However not even that happened in the present case as the judge simply asked Mr Tran (not counsel) whether he had spoken to either of the lawyers (the representatives of the Crown and the accused). The judge did not ask Mr Tran what explanation, if any, he had been given about the effect of the section (see [8] above).

30. Moreover, the judge’s open-ended question to Mr Tran, “Why don’t you want to give evidence against your daughter?”, did not specifically bring to Mr Tran’s attention the factors that might have been relevant to the judge’s decision. Certainly, the evidence thereafter revealed a number of matters that were relevant, but the course the proceedings took was not capable of satisfying the judge that Mr Tran was “aware of the effect” of the section.

31. In these circumstances, s 18(4) was not complied with. That non-compliance vitiated his Honour’s requirement that Mr Tran give evidence. That result is what I consider to be the legislative intent (see Project Blue Sky Inc. & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93]). Both applications for leave should accordingly be granted and the appeals upheld.

32. It is unnecessary in these circumstances to consider a further respect in which it was alleged that s 18 was not complied with, namely, that his Honour did not, but should have, considered whether harm might be caused to Mr Tran by reason of him giving evidence, separate from his Honour’s consideration of whether giving evidence would or might harm Mr Tran’s relationship with his daughter (see s 18(6)). Nor is it necessary to deal with Mr Tran’s contention that he was denied procedural fairness.

Orders

33. For the above reasons I propose the following orders:

1. Grant leave to appeal to Ms Anh Thu Tran and to Mr Ba Bao Tran.

2. Allow the appeals.

3. Order pursuant to s 5F(5)(a) of the Criminal Appeal Act that the ruling of Pickering DCJ dated 19 October 2016 requiring Mr Tran to give evidence as a witness for the prosecution in the trial of Ms Tran be vacated.

4. Remit Mr Tran’s objection under s 18(2) of the Evidence Act to the District Court for determination in accordance with law.

34. SCHMIDT J: I have had the advantage of reading both the judgments of Macfarlan JA and Wilson J. I agree with the conclusions which Macfarlan JA has reached.

35. On the question of what s 18 “Compellability of spouses and others in criminal proceedings generally” of the Evidence Act 1995 (NSW) requires, I consider that it should not be overlooked that typically, in criminal proceedings to which the section applies, a witness who under s 12 is both competent and compellable, is brought before the court to give evidence following service of a subpoena. Such a witness is unlikely to have an interest in the proceedings, or to be represented. In the event that an objection under s 18 is upheld, he or she will be excused from compliance with the subpoena, without further application.

36. Such a witness may not only have a right to object to giving evidence under s 18, but also under s 128, or some other provision made in Part 3.10 “Privileges” of the Evidence Act. In such a case, s 132, like s 18(4), also imposes an obligation on the court, rather than on a party to the proceedings, to satisfy itself that the witness is “aware of the effect of the section”, before being required to give evidence.

37. As discussed in Regina v Ahmed [2001] NSWCCA 450 at [37], s 132 “imposes an obligation on a trial judge to inform a witness or party that he or she may have grounds for making an objection to giving evidence. This provision operates to ensure fairness to the witness or party who has a basis for making an objection”.

38. Thus it is in the case of s 128, if the witness appears to have grounds for objection, the trial judge must first ensure that the witness is made aware of the right to object to giving evidence which may tend to prove that he or she has committed an offence under an Australian or foreign law, or is liable to a civil penalty. Secondly, the judge must also be satisfied that the witness is aware of the consequences which flow under the section, in the event that particular elections there provided for, are made. Otherwise there can be no satisfaction that the witness is “aware of the effect of the section”.

39. Similarly in the case of a witness to whom s 18 applies, before being required to give evidence, the trial judge must do more than ensure that the witness is made aware of the right to make an objection to giving evidence.

40. Given that the witness must be made “aware of the effect of the section”, it follows that he or she must be informed of the provision made in s 18(6), that he or she will not be required to give the evidence, if it is found that:

“(a)   there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and

(b)   the nature and extent of that harm outweighs the desirability of having the evidence given.”

41. Further, the witness must also be informed of the mandatory considerations specified by s 18(7), which the trial judge must consider before concluding that the nature and extent of the likely harm which outweighs the evidence might cause the desirability of having the evidence given. That is necessary if the witness is to be given a fair opportunity to address those and any other considerations which are relevant to the objection which he or she wishes to advance.

42. It follows that procedurally, just like in the case of s 128, it will thus be desirable for such a witness to be given an opportunity to obtain advice about the right of objection which s 18 grants. If it is not possible for the witness to obtain such advice, then it will be for the trial judge to give the witness an explanation of the effect of the section, before consideration is given to whether the witness should be required to give evidence, notwithstanding the objection which is pressed.

43. In this case, his Honour was informed by counsel for the applicant that Mr Tran wished to object to giving evidence under s 18. What was required, however, before Mr Tran was called on to advance that objection, was that his Honour be satisfied that “the effect of the section” had been explained to Mr Tran, as s 18(4) required.

44. In Mr Tran’s circumstances, there may have been no reason why such an explanation could not have been given to him by the applicant’s counsel, as an officer of the Court, if there was no potential conflict. But more was required than counsel informing his Honour that Mr Tran had been advised that s 18 gave him a right to object to giving evidence, if his Honour was to be able to form the required statutory opinion.

45. The procedure pursued thus suffered from the deficiency that, his Honour not himself having explained the effect of the section to Mr Tran, there was no basis on which he could have been satisfied that its effect had been explained to him by anyone else.

46. The procedure followed then involved Mr Tran being required to give evidence on oath, on which he was cross-examined by the applicant. That procedure did not accord with the provisions of s 18, which requires that a person in Mr Tran’s position be given the opportunity to exercise the right which the section grants, to object to giving any evidence, only after being made aware of the effect of the section.

47. While Mr Tran was entitled to lead relevant evidence in support of his objection, including by himself giving evidence, about which he could then be cross-examined, he could not be required to give such evidence.

48. It may, of course, be that even if Mr Tran had been given an explanation of the effect of the section by his Honour, as well as an opportunity to address the considerations which s 18(7) required be taken into account, the conclusion that the nature and extent of the harm which might be caused to Mr Tran’s relationship with the applicant, did not outweigh the desirability of having him give his evidence, would still have been available to be reached.

49. Even so, because of the procedure which was followed, his Honour could not have been satisfied, as he had to be, that Mr Tran was aware of the effect of s 18 as it applied to him before a decision was made that required him to give evidence, despite his objection.

50. These conclusions as to the requirements of s 18 also provide support for the view which Macfarlan JA has reached in relation to Mr Tran’s right to seek leave to appeal under s 5F(3). Mr Tran is a party to the part of the proceedings in which he exercised his s 18 right to object to giving evidence, despite the subpoena served upon him, during a voir dire. That is what entitles him to pursue an application under s 5F(3) for leave to appeal against the primary judge’s interlocutory order and if the parties to the proceedings challenge that order, to be heard as a party to the appeal or application for leave to appeal.

51. While that order did not determine the fate of the prosecution case, so far as Mr Tran was concerned, it was the Court’s final determination of the right given him by s 18 to object to giving evidence on subpoena. That objection was thereby disposed of, with the result that he was bound to comply with that subpoena.

52. In Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667, it was held that the objection of the Commissioner of Police to producing documents to the Local Court under subpoena, on the basis of public interest immunity, had to be resolved before the documents were produced. Just as in the case of the rejection of an objection under s 18 which here arises for consideration, the rejection of a public interest immunity claim, was not one which could be corrected on an appeal against conviction. That was taken into account in arriving at the conclusion that the rejection of the claim involved an interlocutory order, amenable to appeal under s 5F on application of the Attorney-General, who, like the Commissioner of Police, was not a party to the proceedings, but had a right of appeal under s 5F(3A).

53. In Regina v Keeling (Court of Criminal Appeal (NSW), Cole JA, Smart and James JJ, 5 September 1996, unrep), Telstra and Mallesons were third parties who had successfully objected to the production of documents to the Local Court in committal proceedings, under subpoenas issued by Mr Keeling. They were granted leave to appear on Mr Keeling’s application for leave to appeal under s 5F(3), as parties interested, and were represented and advanced submissions on the hearing of the application.

54. It was there concluded that there was no relevant distinction between a ruling in respect of a claim for public interest immunity and one in respect of a claim of legal professional privilege, when objection was taken to production of documents under a subpoena: at 5 and 8. At 9, it was held that such a ruling:

“… constitutes an order whether it requires or does not require a third party to produce documents because it regulates or determines the rights and obligations as between two parties who are contesting an obligation of production.”

55. In R v Abdullah [1999] NSWCCA 188 it was the Commissioner of the Australian Federal Police who brought a 5F appeal in relation to a subpoena.

56. In Attorney-General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156 a long line of authorities which adopted the same approach as that in Attorney-General v Stuart were discussed at [25].

57. In Osborne v R (2014) 238 A Crim R 417; [2014] NSWCCA 17 at [3], the rejection of an objection by the Proper Officer, Medicare Australia under s 135A of the National Health Act 1953 (Cth), to production of certain records to the District Court on subpoena, was also held to be an "interlocutory judgment or order", falling within s 5F(2). In that case it was also the accused who pursued the appeal.

58. In this case, contrary to the case which the Crown advanced, the rejection of Mr Tran’s s 18 objection had the result that he was not excused from giving the evidence which the subpoena with which he had been served compelled him to give. That would not have been the result, if his s 18 objection was upheld. It follows that not only was he interested in the rejection of his objection, but a party to that part of the proceedings in which his s 18 objection was determined. Accordingly, he was entitled to seek leave to appeal the interlocutory order which bound him, under s 5F(3).

55. In the result, Mr Tran was also entitled to be heard on the applicant’s application for leave to appeal, just like the third parties who had successfully objected to the production of documents under a subpoena issued by Mr Keeling in Regina v Keeling.

56. WILSON J: There are three issues of significance relevant to the determination of this matter:

1. the question of whether a ruling deciding an objection taken by a witness pursuant to s 18 of the Evidence Act 1995 (NSW) is a “judgment or order” for the purposes of s 5F(3) of the Criminal Appeal Act 1912 (NSW);

2. the nature and extent of the obligation imposed upon a court by s 18(4) of the Evidence Act; and

3. whether a person who objects to giving evidence pursuant to s 18 of the Evidence Act is a “party” within the meaning of s 5F(3) of the Criminal Appeal Act.

61. With respect to the first of these issues Macfarlan JA has concluded that the determination by the trial judge of Mr Tran’s s 18 objection is a “judgment or order” as contemplated by s 5F, and is thus amenable to appellate review. I agree with his Honour’s conclusion, and with the reasons given by him.

62. I am, however, unable to agree with the conclusions of the Presiding Judge as to the two remaining issues. As I am in the minority, the reasons for my differing conclusions will be relatively brief.

The Nature and Extent of the Obligation Imposed by s 18(4) of the Evidence Act

63. Section 18(4) is in these terms:

“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.”

64. Statutory interpretation in New South Wales is guided by the Interpretation Act 1987. Section 33 of that Act provides:

“In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”

65. Applying s 33 in Project Blue Sky Inc. & Ors v Australian Broadcasting Authority (1998)194 CLR 355; [1998] HCA 28 McHugh, Gummow, Kirby and Hayne JJ said at [78]:

“However, the duty of a court is to give the words of a statutory provision a meaning that the legislature is taken to have intended them to have [...].”

66. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 French CJ observed that statutory construction proceeds by considering the ordinary and grammatical sense of the statutory words to be interpreted, having regard to their context and legislative purpose. That observation was uncontroversial, and was echoed in the joint judgment of Hayne, Heydon, Crennan and Kiefel JJ, at [47]:

“…the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (Footnotes omitted.)

67. Section 18(4) imposes an obligation on the court to “satisfy itself” that a person who may have a right to take an objection “is aware of the effect” of the section as it “may apply to the person”.

68. The critical question is what is intended by the words “aware of the effect”. Do the words require, as the applicant argues, that the objector has knowledge of all of the things referred to in s 18(6) and (7) or, as the Crown submits, do the words refer to nothing more than an understanding that there is a right to object to giving evidence.

69. The Oxford Dictionary (4th ed 1993, Oxford University Press) Vol 1 defines “effect” as:

“1. Something accomplished, caused or produced; a result, a consequence. Results in general; the quality of producing a result; efficacy.”

70. In introducing the legislation to the Parliament in his second reading speech of 24 May 1995, the then Attorney General said that the:

“[…] primary role of the laws of evidence is to facilitate the fact finding task of the courts by enabling parties to produce the probative evidence available to them.” (The Hon. J.W. Shaw, Hansard, 24 May 1995).

71. With that background, the Attorney described the proposed s 18 as a means for family members to:

“[…] object to giving evidence as a witness for the prosecution and, in certain circumstances, [they] will not be required to give evidence. […] The approach which has been adopted in the bill offers the best means of ensuring the achievement of the underlying policy objectives of protection of the family unit and the avoidance of undue hardship to the witness.” (Ibid)

72. Thus the context of the provision is to ensure relevant and probative evidence is available to the courts, whilst s 18 allows for family members to take an objection and in certain circumstances to be excused from testifying.

73. Having regard to the language of s 18(4) and the legislative scope and intention of the Evidence Act, I regard the provision as requiring the court to be satisfied that the person understands the result the section is intended to produce, that being that a person with a particular relationship to a defendant may object to giving evidence, and a court will determine the objection. That is the result or consequence of the provision, its “effect”. More is not required. I do not consider the provision to require a judge to be satisfied that the person understands its operation, or the manner in which a court approaches its task.

74. Construing the legislation in this way is consistent with the construction given to a comparable phrase in the Evidence Act, that found in s 132. There are two other sections in the Act which require a court to satisfy itself that a person understands the effect of a provision in the Act, s 17 and s 132. They are, relevantly:

“17   Competence and compellability: defendants in criminal proceedings

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

(2)  […]

(3)  An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant.

(4)  If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury’s absence) that the witness is aware of the effect of subsection (3).

132   Court to inform of rights to make applications and objections

If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision [namely, s 128]”.

75. Section 132 has been considered, in R v Ahmed [2001] NSWCCA 450. There, Bell J, with whom Heydon JA and Dowd J agreed, said:

“Section 132 of the Evidence Act requires that the Court satisfy itself that a witness is aware of his or her right to object to giving evidence where it appears that the witness may have grounds for making an objection.”

76. Here, the trial judge, having been informed by counsel for the applicant that Mr Tran wished to object to giving evidence, and having been given a history of the circumstances and nature of the relationship between Mr Tran and the applicant, heard evidence on oath from Mr Tran.

77. It was clear that Mr Tran understood that he had a right to object to giving evidence, as he told his Honour that he had discussed his rights with one of the lawyers present in the court room (being the applicant’s counsel). Indeed, the applicant does not suggest other than that Mr Tran understood his right to take the objection.

78. In so doing, Mr Tran (through an interpreter) used the language of s 18(6)(a), telling his Honour that “harm” would be caused by his testimony. Mr Tran also demonstrated some knowledge that, regardless of his objection, it was a matter for the court to decide whether or not he was required to give evidence. He said:

“Your Honour, something unfortunate, you know, happening in my family. And then as you know that as a father, you know, I don’t want to be in the witness box to do any harm to my daughter. But it’s up to you, and according to the Australian law, if I will be required to be in the witness box, it’s up to you.”

79. In addition to asking Mr Tran himself why he did not wish to give evidence, the trial judge permitted trial counsel to ask questions of him on his oath. In the course of that evidence Mr Tran made it clear that, having had his relationship with his daughter disrupted by war, he was seeking to re-establish it, and believed that his efforts and the relationship would be harmed if he gave evidence in the Crown case.

80. In my view, the obligation that fell on his Honour pursuant to s 18(4) was to ensure that Mr Tran understood in a general way the result that s 18 was intended to bring about, that being that he could object to giving evidence against his daughter, and the court could determine his objection.

81. It was well open to conclude, as the trial judge did, that Mr Tran in fact understood these things, particularly so since Mr Tran had discussed his rights in that regard with his daughter’s counsel prior to coming before the trial judge, and his Honour was advised of that. His Honour also had the opportunity to observe Mr Tran as he gave evidence, in which Mr Tran said both that he did not wish to testify because of the harm he foresaw to himself and his daughter if he did testify, and demonstrated his understanding of the role of the court in determining his objection.

82. His Honour took the necessary steps to satisfy himself that Mr Tran was aware of the effect of s 18(4), and no error in that regard has been demonstrated.

83. It may be desirable, as a statement of best practice, for a court determining a s 18 objection to facilitate the provision of independent legal advice to a potential objector, or to explain those matters raised by s 18(6) and (7), but it cannot be mandatory. Particularly in the context of a busy suburban or circuit court, it may not be possible. It is sufficient for a court to be satisfied that the objector understands the general purpose of the section.

Is Mr Tran “a party” for the purposes of s 5F(3) Criminal Appeal Act 1912?

84. As Macfarlan JA has explained, there are occasions in the civil law when persons other than litigants are regarded as being a party to proceedings, with at least some of the rights and obligations a party typically has: Law Society of New South Wales v Jackson [1981] 1 NSWLR 730; JP Morgan Chase Bank v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31; Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52.

85. It is perhaps not insignificant that no example could be cited by the parties of an occasion when a person other than the Attorney General, the Crown or the accused person has been given the standing of a party in a criminal prosecution, other than instances where a specific statute confers such standing. An example of the latter is s 5F(3AA) of the Criminal Appeal Act which specifically provides for a right of appeal to a protected confider:

“(3AA) A person who is not a party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against a decision in those proceedings to grant leave under Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 or a determination in those proceedings that a document or evidence does not contain a protected confidence within the meaning of that Division, if the person is:

(a)  a person who, because of the leave, is required to produce a document or adduce evidence that contains a protected confidence, or

(b)  a protected confider in relation to a protected confidence that may be produced or adduced because of the leave, or

(c)  a person who claims the document or evidence does, despite the determination, contain a protected confidence in relation to which the person is a protected confider.”

86. One might rhetorically ask, if the legislature intended witnesses to be regarded as a party to proceedings, or given standing to appeal to this Court, why the statute does not confer such standing or rights, as it does for a protected confider.

87. In criminal proceedings, those entitled to standing have historically been confined to the Attorney General, the Director of Public Prosecutions or other relevant prosecuting authority, and the accused person. That is an important safeguard to the rights of the parties and the proper administration of justice, in an area of the law that can be both highly emotional and highly politicised. To broaden the meaning of “party to proceedings” with respect to criminal proceedings to persons whose interests may be affected by those proceedings, and even adversely affected, is a precedent that one can readily foresee could have unwanted consequences. If a witness with a familial or other domestic relationship with an accused person is a party to proceedings with a right of appeal to this Court, why then is a victim of crime not entitled to appear as a party on sentence appeals?

88. Had the legislature intended witnesses taking an objection pursuant to s 18 (or s 17 or s 128) to have available an avenue of appeal, it would have made specific provision for it, as it did with protected confiders.

89. I would not grant Mr Tran leave to appeal.

90. Ms Tran has an avenue of appellate review available to her and, having regard to the centrality of Mr Tran's evidence to the Crown's case against her, I would grant her leave to appeal.

91. The orders I would make are to refuse leave to appeal to Mr Tran, grant leave to Ms Tran, but dismiss the appeal.

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Decision last updated: 11 December 2018