Tran v The Queen

[2018] NSWCCA 145

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Tran v R [2018] NSWCCA 145

Hearing dates:

6 July 2018

Date of orders:

23 July 2018

Decision date:

23 July 2018

Before:

Payne JA at [1]; Schmidt J at [52]; Button J at [53]

Decision:

(1) Leave to appeal against the interlocutory order made by Craigie SC DCJ be granted pursuant to s 5F(3)(a) of the Criminal Appeal Act;

 

(2)   Appeal allowed;

 

(3) Vacate the order made by Craigie SC DCJ on 14 March 2018 refusing to uphold Mr Ba Bao Tran’s objection to giving evidence under to s 18 of the Evidence Act pursuant to s 5F(5)(a) of the Criminal Appeal Act;

 

(4) Mr Ba Bao Tran’s objection pursuant to s 18 of the Evidence Act is remitted to the District Court to be determined afresh in accordance with these reasons;

(5) Publication of this judgment be restricted to the parties until there is a verdict of the jury in the applicant’s trial or for a period of 12 months from today’s date whichever first occurs. If any further period of restriction is sought by either party, leave is granted to make written application to the chambers of the presiding judge. The order is made as it is necessary to prevent prejudice to the proper administration of justice within the meaning of s 8(a) of the Court Suppression and Non-publication Orders Act 2010.

Catchwords:

INTERLOCUTORY APPEAL – s 5F Criminal Appeal Act – accused found not to have standing to make submissions about objection to giving evidence at trial under s18 Evidence Act made by accused’s father – whether denial of procedural fairness

EVIDENCE — witness evidence — compellability —parents – whether witness should be excused from giving evidence – s 18 Evidence Act – whether the trial judge denied the accused procedural fairness by finding she had no standing – whether the trial judge had failed to take into account a material consideration – whether the trial judge’s finding about co-accused was plainly unreasonable

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW) s 8
Criminal Appeal Act 1912 (NSW) s 5F
Criminal Procedure Act 1986 (NSW) s 130, 279
Drug Misuse and Trafficking Act 1985 (NSW) ss 24A, 33AB
Evidence Act 1995 (NSW) ss 18, 19, 65, 138

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
DWN042 v Republic of Nauru [2017] HCA 56
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
R v A2; R v KM; R v Vaziri (No. 4) [2015] NSWSC 1306
R v Fletcher [2015] NSWSC 1630
R v Quinn [2016] NSWSC 1101
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Tran v R [2017] NSWCCA 93

Category:

Procedural and other rulings

Parties:

Anh Thu Tran (Applicant)
DPP (Respondent)

Representation:

Counsel:
T Quilter (Applicant)
A Chhahra (Witness)
E Balodis (Respondent)

  Solicitors:
Blair Criminal Lawyers (Applicant)
Shelly Legal (Witness)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2014/00295040

Publication restriction:

Publication of this judgment be restricted to the parties until there is a verdict of the jury in the applicant’s trial or for a period of 12 months from today’s date whichever first occurs. If any further period of restriction is sought by either party, leave is granted to make written application to the chambers of the presiding judge. The order is made as it is necessary to prevent prejudice to the proper administration of justice within the meaning of s 8(a) of the Court Suppression and Non-publication Orders Act 2010.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 April 2018

Before:

Craigie SC DCJ

File Number(s):

2014/00295040

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant had been arraigned on an indictment for charges under section 24A of the Drug Misuse and Trafficking Act 1985 (NSW). The applicant’s father was called by the prosecution to give evidence against her. The applicant’s father objected, pursuant to s 18 of the Evidence Act 1995 (NSW), to being required to give evidence in the trial. The trial judge declined to uphold the objection, holding that the significance of the father’s evidence outweighed the potential damage to his relationship with the applicant. The applicant and her father each sought leave to appeal from that decision. The Court of Criminal Appeal granted each leave to appeal and allowed the appeal.

The applicant’s father’s objection was remitted to the District Court for determination. In those proceedings, the trial judge refused to allow the applicant’s counsel to make submissions on issues relating to the father’s objection under s 18 on the basis that the applicant did not have standing. The applicant sought leave to appeal against this decision.

The issues on appeal were:

Whether the trial judge denied the applicant procedural fairness by finding that she lacked standing on the application;

Whether the trial judge failed to take into account a material consideration that the Crown and/or police had not attempted to obtain evidence from Mr Nguyen; and

Whether the trial judge’s findings about Mr Nguyen were plainly unreasonable.

The Court (Payne JA, Schmidt and Button JJ), allowing the appeal, held:

In relation to the first issue, (per Payne JA at [33] and [37]-[38], Schmidt and Button JJ agreeing at [52] and [53] respectively):

The applicant had standing in her own criminal trial. An accused’s legal interests will clearly be affected by a judge’s determination made under s 18 of the Evidence Act, whatever the outcome. That is enough to enliven the obligation of procedural fairness. The trial judge erred in stating that the proceedings determined “only” the rights of the witness and the Crown. The refusal by the trial judge to allow the applicant’s counsel to make submissions resulted in a denial of procedural fairness in the circumstances of this case.

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10; DWN042 v Republic of Nauru [2017] HCA 56 applied.

In relation to the second and third issues, (per Payne JA at [42]-[44], Schmidt and Button JJ agreeing at [52] and [53] respectively):

Having determined that there was a denial of procedural fairness, it was inappropriate to consider these issues in this Court. The witness’ objection in the present case should be remitted to the District Court to be determined afresh, treating the applicant as a party to the proceedings.

Judgment

1. PAYNE JA: It is fundamental to our system of criminal justice that the accused is a party in his or her own criminal trial. The determination by Craigie SC DCJ in this case that the accused was not a party, and thus had no right to be heard, for the purposes of an objection made by a witness pursuant to s 18 of the Evidence Act 1995 (NSW) (“Evidence Act”), which objection was made for the purposes of and during her trial, was flawed and must be set aside.

2. This is not to say that trial judges should not limit cross-examination and submissions sought to be made by counsel for an accused person in relation to an objection made by a witness pursuant to s 18 of the Evidence Act. First, and fundamentally, any question sought to be asked in cross-examination or submission made must address a relevant issue for the purposes of the objection. Secondly, trial judges have a discretion to limit cross-examination and submissions by counsel for an accused person, including for the purposes of an objection made by a witness pursuant to s 18 of the Evidence Act.

3. His Honour here did neither of those things. His Honour did not rule that any proposed cross-examination or submission was irrelevant; nor was any discretion exercised. His Honour found that the accused lacked standing for the purposes of the objection made by the witness.

Relevant background

4. The applicant, Ms Anh Thu Tran, has been arraigned on an indictment alleging that she possessed 3.83kg of pseudoephedrine, a precursor to the drug methylamphetamine hydrochloride commonly known as “ice”, contrary to section 24A of the Drug Misuse and Trafficking Act 1985 (NSW). The applicable maximum penalty is 10 years imprisonment: s 33AB(1) of the Drug Misuse and Trafficking Act.

5. The Crown’s case is that the applicant and Mr Huu Tin Nguyen, then the applicant’s boyfriend, were in joint possession of 117,684 cold and flu tablets containing pseudoephedrine which were seized from the home of the applicant’s father, Mr Ba Bao Tran. The Crown case is that analysis indicates that the quantity of pseudoephedrine in the cold and flu tablets could produce 4.32kg of methylamphetamine hydrochloride, valued at $4,319,000 AUD.

6. On 8 October 2014, officers of the Australian Federal Police executed search warrants at three separate premises: those occupied by the applicant, by Mr Huu Tin Nguyen and by the applicant’s father, Mr Ba Bao Tran. The applicant and Mr Huu Tin Nguyen were both arrested on 8 October 2014.

7. Mr Ba Bao Tran made a statement on 10 October 2014 to the police. The Crown proposed to call Mr Ba Bao Tran as a witness in the trial of the applicant. That statement provided, relevantly, that:

1. the applicant had stored boxes at the witness’ house;

2. these boxes contained packets of medicine, on which was written the word “flu”;

3. there were over 20 boxes;

4. the police searched Mr Ba Bao Tran’s house with a search warrant on 8 October 2014 and in the course of doing so seized the boxes.

8. The applicant’s trial originally commenced on 18 October 2016 before Pickering SC DCJ. On that date, the applicant’s father objected, pursuant to s 18 of the Evidence Act, to being required to give evidence in the trial. Pickering SC DCJ declined to uphold the objection. His Honour held that the significance of Mr Ba Bao Tran’s evidence outweighed the potential damage to the relationship between him and the applicant.

9. The applicant and her father each sought leave to appeal from that decision pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”).

10. On 17 May 2017, this Court unanimously granted leave to appeal to the applicant from the order under s 18 of the Evidence Act pursuant to s 5F of the Criminal Appeal Act (Tran v R [2017] NSWCCA 93 Macfarlan JA at [33], Schmidt J at [34], Wilson J at [90]), and by majority granted leave to appeal to the applicant’s father from the order under s 18 of the Evidence Act pursuant to s 5F of the Criminal Appeal Act. The Court, by majority, allowed the appeal and vacated the order of Pickering DCJ: per Macfarlan JA at [33], Schmidt J agreeing at [34]). Wilson J, in granting the applicant leave to appeal, noted the “centrality of Mr Tran’s evidence to the Crown’s case against her”: Tran v R [2017] NSWCCA 93, at [90]. The effect of the Court’s decision has been reversed, in domestic violence and child sexual assault cases only, by amendments to s 279 of the Criminal Procedure Act and s 19 of the Evidence Act effected by the Justice Legislation Amendment Act (No 2)2018 No 29 (NSW) which relevantly commenced operation on 21 June 2018.

11. On 12 October 2017, the High Court refused to grant the Crown’s application for special leave to appeal from this Court’s decision.

The hearing of the s 18 objection before Craigie SC DCJ

12. On 5 March 2018, the applicant’s father again raised an objection under s 18 of the Evidence Act to his being required to give evidence in the trial of his daughter. He was represented for this purpose by pro bono counsel who was able to assure the Court that the issue in relation to s 18(4) of the Evidence Act identified in Tran v R [2017] NSWCCA 93 had been rectified and an adequate explanation of Mr Ba Bao Tran’s rights had been given to him.

13. Craigie SC DCJ refused to allow the applicant’s counsel to make submissions on issues relating to the father’s objection under s 18 of the Evidence Act. Counsel had sought to make submissions about the operation of s 18, namely:

1. the relationship between the decision required under that section and the potential admissibility of the statement under s 65 of the Evidence Act; and

2. the potential exclusion of the evidence pursuant to s 138 of the Evidence Act.

14. Craigie SC DCJ held that counsel for the applicant should not be permitted to “intrude into the determination of an application where the contending parties are the Crown and the applicant under s 18”. During the hearing of the objection, when counsel for the applicant sought to make a submission his Honour stated that “[counsel for the applicant has] no part in this exercise…I don’t wish to have any more interruptions from you”.

15. As his Honour had ruled that the applicant had no standing in the hearing of the objection under s 18 of the Evidence Act, counsel for the applicant informed the Court that he and his client proposed to leave the courtroom. Craigie SC DCJ ruled, however, that the applicant must remain present throughout the proceeding as the s 18 objection application was “inseparable from the overall processes in which she is the accused”.

16. In his Honour’s reasons for making an order declining to uphold the objection made under s 18 of the Evidence Act, his Honour repeated his earlier conclusion that s 18 required determination of only the rights of the witness and the Crown, and held that therefore the accused had no standing for the purposes of determining the objection under s 18 of the Evidence Act.

17. The judgment of the trial judge about the objection made under s 18 of the Evidence Act reasoned as follows:

1. in terms of s 18(4), his Honour relied upon submissions from Mr Ba Bao Tran’s counsel that s 18(4) was satisfied as the witness was aware of the effect of the section as it had been explained to him by counsel;

2. in relation to s 18(6)(a), his Honour found that some harm might be caused to the witness and his relationship with his daughter, the applicant, if he were to give evidence;

3. in relation to the balancing test in s 18(6)(b), his Honour found that the nature and extent of the harm did not outweigh the desirability of the applicant’s father giving evidence;

4. considering the factors in s 18(7), his Honour found that while it was more probable than not that some harm to the witness would be occasioned by giving evidence due to his own distress, and some damage might be caused to the relationship between the witness and the applicant, the serious nature of the offence and powerful public interest in prosecuting such offenders, and the crucial nature of the evidence in establishing the applicant’s possession and control of the boxes of drugs in this case outweighed the potential harms;

5. in relation to s 18(7)(c), whether other evidence was available to the Crown, was also considered. Mr Nguyen, the alleged co-offender who had pleaded guilty, was not called by the Crown and was not interviewed or asked to provide a statement. His Honour held there could be no legitimate expectation that the Crown would call a co-offender as a witness. His Honour found that it was merely speculative whether Mr Nguyen could provide evidence that related directly to the witness’ evidence;

6. noting that the matters identified in s 18(7) were not exhaustive, his Honour made findings about two additional considerations, being those which counsel for the applicant had foreshadowed but had not been permitted to make submissions about:

1. first, relating to s 138 of the Evidence Act, whether the police acted improperly in taking the father’s statement. The alleged impropriety was failing to inform the father that he was not required to make a statement and that he could consult a solicitor. His Honour held that while there was “no capacity in the applicant to mount an attack via s 138”, matters that might otherwise activate a challenge pursuant to s 138 had been considered in his reasoning under s 18(7);

2. secondly, his Honour ruled that s 65 of the Evidence Act was irrelevant to the consideration of whether any other evidence was reasonably available to the Crown within the meaning of s 18(7)(c). His Honour held that the reference to “other evidence” in s 18(7)(c) was not a reference to the “same evidence” from the witness given by different means.

18. The order made by the Court on 14 March 2018 was, relevantly:

“…Application pursuant to s.18 of the Evidence Act to excuse Mr Tran (the accused's father) from giving evidence is refused. …”

Application for leave to appeal and proposed grounds of appeal

19. On 21 June 2018, the applicant filed an amended application seeking leave to appeal under s 5F of the Criminal Appeal Act. The interlocutory judgment or order identified was that referred to in paragraph [18], made under s 18 of the Evidence Act. It was made clear at the hearing of this application that this amended application was the one being prosecuted. The proposed grounds of appeal identified were:

1. the trial judge denied the applicant procedural fairness by refusing to recognise that she had standing on the application;

2. the trial judge failed to take into account a material consideration that the Crown and/or police had not attempted to obtain evidence from Mr Nguyen; and

3. the trial judge’s findings about Mr Nguyen were plainly unreasonable.

20. On 28 June 2018, Mr Ba Bao Tran also filed an application seeking leave to appeal out of time under s 5F of the Criminal Appeal Act. At the hearing of that application in this Court, counsel for Mr Ba Bao Tran withdrew that application, which need not be further considered.

Crown submissions

21. The Crown accepted that it was fundamental that the accused is a party to his or her own criminal proceedings. Nevertheless, the Crown submitted that within the trial, determination of an objection made by a witness under s 18 of the Evidence Act was a separate application to which the accused was not a party.

22. The Crown submitted that the parties to the determination of an objection made by a witness under s 18 of the Evidence Act were the Crown and the witness. The accused was not a party to the objection. It was submitted that unless a sound basis was demonstrated for “another party”, the accused, to intervene, the dispute is between those two parties. The Crown submitted that Craigie SC DCJ was applying this principle and that, therefore, his Honour did not perceive that counsel for the accused had a sound basis to intervene as a third party in relation to hearing of the objection.

23. The Crown accepted that the determination made about the objection affected the interests of the accused, but submitted that this was not sufficient to confer standing upon the accused.

24. The Crown submitted that the accused’s counsel did not identify a sufficient basis for standing. The arguments sought to be advanced under ss 65 and 138 of the Evidence Act were not sufficient to be permitted standing as a party to determination of the objection.

25. The Crown submitted that a denial of procedural fairness will entitle the aggrieved party to a rehearing unless a particular breach would not have affected the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 at 145; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [104]; Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [65].

26. It was submitted that the nature of the arguments the applicant’s counsel wished to advance in cross-examination and submissions would not have affected the determination of the witness’s objection under s 18, and thus the ground of appeal should be dismissed.

27. The Crown submitted that the three cases decided in the Supreme Court where counsel for an accused had been permitted to make submissions about a question arising under s 18 of the Evidence Act were each distinguishable from the present case. The Crown submitted that:

1. in R v Fletcher [2015] NSWSC 1630 at [10] per Button J, the accused acquired “a greater degree of standing” because the witness who objected to giving evidence had made a statement that, in part, favoured the accused;

2. in R v Quinn [2016] NSWSC 1101 at [11]-[12] per Beech-Jones J, counsel for the accused was able to assist the Court by indicating a position as to admissibility of evidence which was of importance in determining the objection;

3. in R v A2; R v KM; R v Vaziri(No. 4) [2015] NSWSC 1306 at [141] per Johnson J, counsel for the accused’s submissions referred to the availability of recorded interviews of the two alleged child victims.

The applicant was a party to the determination of an objection by a witness under s 18 Evidence Act

28. Section 18 of the Evidence Act provides:

“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.”

29. Neither party gave consideration to the operation of the doctrine of abuse of process as explained by the High Court in Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42. It was conclusively determined by this Court in Tran v R [2017] NSWCCA 93, Macfarlan JA at [33], Schmidt J at [34] and Wilson J at [90], that this applicant had standing to pursue an appeal against the order made under s 18 of the Evidence Act by reason of s 5F of the Criminal Appeal Act on the basis that she was a “party to proceedings to which s 5F applies”. How the applicant, who was conclusively determined to be a party to the proceedings for the purposes of an appeal against an order made under s 18 of the Evidence Act in the first application to this Court, ceased to be a party in relation to that same s 18 objection when it was remitted to the trial judge, was not the subject of consideration by the trial judge or in this Court.

30. This may have been a sufficient basis to set aside the order under s 18 of the Evidence Act made by the primary judge. As the question was not raised by the parties, however, and the point was not the subject of submissions, I will address the merits of the application as if the first successful appeal to this Court had not occurred.

31. The first point to notice is that the Crown accepted that the interlocutory order made by Craigie SC DCJ under s 18 of the Evidence Act was a “judgment or order” affecting the rights of the applicant for the purposes of s 5F of the Criminal Appeal Act. How that judgment or order could affect the rights of a non-party was not explored on the appeal.

32. It may be accepted, as the Crown submitted, that the focus of the harm to which s 18 of the Evidence Act is directed is harm to the proposed witness for the prosecution and harm to the witness’s relationship with an accused, rather than the harm to the accused’s legal interests in defending the case if the witness is not excused from giving evidence. It may also be accepted that s 18 of the Evidence Act is only enlivened if the prosecution seeks to call the witness to give evidence and the witness objects under ss 18(2) and (3) of the Evidence Act. It must also be accepted that, as the Court found in the first s 5F appeal, a court must take adequate steps to satisfy itself that the witness is aware of the effect of s 18 as it may apply to the person, save in domestic violence and child sexual assault cases where the amendments to s 279 of the Criminal Procedure Act and s 19 of the Evidence Act effected by the Justice Legislation Amendment Act (No 2)2018 (NSW) which relevantly commenced operation on 21 June 2018 apply.

33. However, as the Crown correctly and fairly accepted, an accused’s legal interests will clearly be affected by a judge’s determination made under s 18 of the Evidence Act, whatever the outcome. That is enough to enliven the obligation of procedural fairness: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 576 per Mason CJ, Dawson, Toohey and Gaudron JJ. The trial judge erred in stating that the proceedings determined “only” the rights of the witness and the Crown.

34. So much is demonstrated by the events which occurred when counsel for the applicant observed that if his client had no standing to appear for the purposes of the s 18 objection, he and his client would leave the courtroom. The trial judge correctly held that determination of the s 18 objection was “inseparable from the overall processes in which she is the accused”. It bears emphasising that simply permitting (or requiring) an accused (or their legal representative) to be present when an application is determined in his or her criminal trial is not to afford the accused procedural fairness.

35. The applicant here had a particular interest in the outcome of the s 18 objection as it affected the evidence available to be presented at her trial. The reference to her “standing” bespoke error. It is fundamental that under our justice system a criminal trial commences when the indictment is presented. Orders made by the court after the presentation of the indictment but before the empanelment of the jury are “part of the trial of the accused person”: Criminal Procedure Act 1986 (NSW) s 130(3). The order made here in relation to the s 18 Evidence Act objection was part of the applicant’s trial. Even in domestic violence and child sexual assault cases where the amendments to s 279 of the Criminal Procedure Act and s 19 of the Evidence Act effected by the Justice Legislation Amendment Act (No 2)2018 (NSW) apply the accused has standing, albeit the accused’s rights are circumscribed in many respects in such cases by the statute.

36. The Crown and the accused may properly be in a position to address many of the considerations referred to in s 18(7). There may be circumstances in which the accused is the only party who can properly address some of the factors referred to in that subsection. The refusal by the trial judge to allow the applicant’s counsel to make submissions resulted in a denial of procedural fairness in the circumstances of this case.

37. The Crown’s submission relying on Stead must be rejected. As the High Court held in DWN042 v Republic of Nauru [2017] HCA 56 per Keane, Nettle and Edelman JJ):

“[20]…The respondent accepted that the "stringency" of the test in Stead v State Government Insurance Commission did not apply to the circumstances of this appeal. That case involved a denial of procedural fairness at trial where a party was deprived of the chance to make submissions on an issue of fact. This Court held that:

"All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result." (1986) 161 CLR 141; [1986] HCA 54. Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147.

[21] The respondent was correct not to submit that this appeal could be dismissed on the basis that a properly conducted hearing could not possibly have produced a different result. That principle does not apply where, as was the case with the appellant's notice of motion, a party receives no hearing at all. The appellant was, and is, entitled to a hearing in the Supreme Court. It is not for this Court to attempt to provide the hearing that the appellant has not had, or to attempt to give any judgment such as might be thought to have been appropriate in the Supreme Court….” (emphasis added) (footnotes omitted).

38. That is precisely the position here. The applicant was denied a hearing by the trial judge. To paraphrase their Honours in DWN042, it is not for this Court to attempt to provide the hearing that the applicant has not had, or to attempt to give any judgment such as might be thought to have been appropriate in the District Court if determination of the s 18 objection had not miscarried.

39. The three cases decided in the Supreme Court where an accused had been permitted to make submissions about a question arising under s 18 of the Evidence Act demonstrate with pellucid clarity that the applicant was a party to the determination of the objection under s 18 of the Evidence Act:

1. in R v Fletcher, the witness who objected to giving evidence had made a statement that, in part, favoured the accused. It cannot be right that the question of the standing of the accused turns upon whether the witness had made a statement which, in part, favours the accused. The fact that the accused in that case was able to point that out, and make submissions on relevant issues, points strongly in favour of an applicant being treated as a party to the determination of a s 18 objection;

2. in R v Quinn, counsel for the accused was able to assist the Court by indicating a position as to admissibility of evidence which was of importance in determining the objection. It is not correct that there is, at the outset, in effect a “show cause” helpfulness requirement in order for an accused to have standing to make submissions. Some applicants may be in a better position than others to address relevant issues about s 18 of the Evidence Act in a helpful way. As I have said at the outset, it is fundamental that any submission made must address a relevant issue. It does not follow that an accused lacks standing in the determination of a s 18 objection unless special circumstances are shown;

3. in R v A2, counsel for the accused’s submissions referred to the availability of recorded interviews of the two alleged child victims. This is a cogent demonstration that counsel for the accused may be in a better positon than the witness to address the court on matters relevant to the determination of the s 18 question.

40. No case was cited by the parties where it had been decided that the accused was not a party to a hearing to determine an objection under s 18 of the Evidence Act. The cases referred to immediately above illustrate that the accused is a party to s 18 objection hearings conducted within his or her own criminal trial.

41. Ground 1 must be upheld.

Grounds 2 and 3

42. It was common ground that if the Court concluded that the applicant had been denied procedural fairness by not being treated as a party to the proceedings for the purposes of the objection under s 18 of the Evidence Act, the Court should not embark on a consideration of the trial judge’s approach to police efforts to obtain evidence from the applicant’s alleged co-offender, Mr Nguyen. As I have said, this Court is not in a position to give any judgment such as might be thought to have been appropriate in the District Court if the hearing of the s 18 objection had not miscarried.

43. The Court should not embark on a consideration of issues that are likely to arise in the trial as it remains the case that Mr Ba Bao Tran will again make an objection under s 18 of the Evidence Act to his being required to give evidence in his daughter’s criminal trial.

44. I express no view about the questions of whether the applicant’s submission that the “failure” by the prosecution to obtain evidence from Mr Nguyen was a material consideration or whether the trial judge was required to take that matter into consideration as a relevant issue.

Conclusion

45. It is highly regrettable that a question arising in this trial under s 18 of the Evidence Act has come to this Court a second time under s 5F of the Criminal Appeal Act.

46. I can discern no legislative intention in enacting s 18 of the Evidence Act that there should be any lengthy or protracted hearing regarding the question of whether a witness who objects to giving evidence should be excused under s 18.

47. There is no doubt, as I stated at the outset, that trial judges need only permit relevant cross-examination and submissions and have a discretion to limit cross-examination and submissions by counsel for an accused person for the purposes of an objection made by a witness pursuant to s 18 of the Evidence Act.

48. The extent of relevant issues will be determined by the subject matter, scope and purpose of s 18 of the Evidence Act in the context of the particular criminal trial being conducted. What will be a relevant submission or question in cross-examination will differ in every case.

49. The limits of the appropriate exercise of the discretion to limit relevant cross-examination and submissions by counsel for an accused person in relation to an objection made by a witness pursuant to s 18 of the Evidence Act should be addressed in a case which actually raises that issue.

50. The witness’ objection in the present case should be remitted to the District Court to be determined afresh, treating the applicant as a party to the proceedings.

Orders

51. I propose the following orders:

1. leave to appeal against the interlocutory order made by Craigie SC DCJ be granted pursuant to s 5F(3)(a) of the Criminal Appeal Act;

2. appeal allowed;

3. vacate the order made by Craigie SC DCJ on 14 March 2018 refusing to uphold Mr Ba Bao Tran’s objection to giving evidence under to s 18 of the Evidence Act pursuant to s 5F(5)(a) of the Criminal Appeal Act;

4. Mr Ba Bao Tran’s objection pursuant to s 18 of the Evidence Act is remitted to the District Court to be determined afresh in accordance with these reasons;

5. publication of this judgment be restricted to the parties until there is a verdict of the jury in the applicant’s trial or for a period of 12 months from today’s date whichever first occurs. If any further period of restriction is sought by either party, leave is granted to make written application to the chambers of the presiding judge. The order is made as it is necessary to prevent prejudice to the proper administration of justice within the meaning of s 8(a) of the Court Suppression and Non-publication Orders Act 2010.

52. SCHMIDT J: I agree with Payne JA.

53. BUTTON J: I agree with Payne JA.

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Amendments

26 August 2019 - Publication restriction removed - judgment published.

Decision last updated: 26 August 2019