Citation: Regina v Raad Fajloun and Mikel Fajloun [2007] NSWDC 367
Court: District Court of New South Wales
Date: 12 November 2007
Judge(s): Cogswell SC DCJ
Background
Two accused, a father and his co-accused (also a family member), faced charges including breaking and entering with commission of a serious indictable offence, kidnapping, and assault occasioning actual bodily harm. The prosecution sought to call the accused father's 20-year-old son as a witness.
After the court explained his rights under s 18 of the Evidence Act 1995, the son formally objected to giving evidence for the prosecution. The objection triggered a voir dire (a preliminary hearing held to determine the admissibility of evidence or a witness's competence to testify).
The court heard evidence from the witness on the matters relevant to the statutory test under s 18(6) and (7) before ruling on whether his objection should be upheld or overruled.
Legal Issues
- Whether the witness, as a person related to the accused, was entitled under s 18 of the Evidence Act 1995 to refuse to give evidence for the prosecution.
- Whether the desirability of the witness giving evidence outweighed the nature and extent of any harm that might be occasioned to him or to his relationship with his father if he were compelled to testify.
Decision
The court identified that the proposed evidence was significant circumstantial evidence. The witness could speak to a phone call he received in the early hours of the morning of the alleged offences, identifying his father as the caller. Other evidence would link the phone used to make that call to the co-accused, placing both accused together within approximately one hour of the first alleged offence.
The prosecution confirmed no alternative evidence was available to substitute for what this witness could provide. The court also noted that counsel for all parties indicated they did not intend to cross-examine the witness on the basis that his prior admitted dishonesty would reduce the weight of his evidence.
On the question of harm, the court found the evidence disclosed little or no damage to the witness himself or to his relationship with his father if he testified. Although the witness acknowledged his evidence might offend his younger brothers, he did not consider it would harm his relationship with his father, nor would it involve disclosing any confidences. No evidence of harm to the witness himself was established.
Weighing these factors, the court concluded that the desirability of having the evidence before the jury outweighed any harm arising from compelling the witness to testify. The objection was overruled.
Orders Made
- The witness's objection under s 18 of the Evidence Act 1995 was overruled.
Key Takeaways
- Under s 18 of the Evidence Act 1995, a witness related to an accused may object to giving evidence for the prosecution, but the court retains a discretion to overrule that objection where the desirability of the evidence outweighs the harm of compelling the witness to testify.
- The District Court applied the factors set out in s 18(6) and (7) by weighing the seriousness of the charges, the significance of the proposed evidence, and the extent of any personal or relational harm to the witness.
- Where no alternative evidence is available to the prosecution and the proposed testimony constitutes significant circumstantial evidence, this weighs heavily in favour of overruling an objection.
- A finding that the witness himself identified little harm to his relationship with the accused, and that no confidences would be disclosed, supported the conclusion that harm was minimal.
- The absence of any evidence of harm to the witness personally was a material consideration in the balancing exercise under s 18.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 18 (including subss (2), (6), and (7))
Cases cited
No cases were cited in the judgment.