Citation: LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016
Court: Supreme Court of New South Wales
Date: 2 September 2011
Judge: Johnson J
Background
A 15-year-old defendant faced charges in the Children's Court at Nowra of malicious damage to property and resisting arrest, both arising from a domestic incident at the family home. His mother had contacted police and given a statement, making her a key prosecution witness. Before the hearing, she sought legal advice and indicated she wished to apply under s.18 of the Evidence Act 1995 to be excused from giving evidence against her son.
Section 18 gives a "close personal relationship" witness (which includes a parent) the right to object to being compelled to testify, allowing the court to exercise a discretion to excuse them. The prosecution argued that s.19 of the same Act removed that right entirely, because the charges were domestic violence offences referred to in s.279 of the Criminal Procedure Act 1986.
The Children's Court magistrate accepted the prosecution's argument and ruled that s.19 applied, meaning the mother had no right to even make the s.18 objection. The defendant sought prerogative relief in the Supreme Court to quash that ruling.
Legal Issues
- Whether s.19 of the Evidence Act 1995 operates to remove a parent's right to object under s.18, where the defendant is charged with an offence referred to in s.279 of the Criminal Procedure Act 1986
- Whether the magistrate's ruling constituted jurisdictional error or error of law on the face of the record, justifying relief in the nature of certiorari under s.69 of the Supreme Court Act 1970
Decision
Both parties agreed before Johnson J that the magistrate had misconstrued s.19. Notably, the court confirmed that this agreement does not automatically determine the outcome; it remained the court's independent task to assess whether error had been established and whether relief should be granted.
Section 19 provides that s.18 does not apply in proceedings for an offence "against or referred to in" certain listed provisions, including s.279 of the Criminal Procedure Act. Section 279 deals specifically with the compellability of spouses in certain criminal proceedings. Johnson J found that because s.279 is directed at spouses only, it does not extend to encompass parents or other close personal relationship witnesses falling under s.18(2). The magistrate therefore erred in treating the mother as falling within the class of persons excluded from s.18 protection by operation of s.19.
The court held that this error amounted to jurisdictional error: the magistrate had misconceived the nature of the power he was required to exercise when determining the mother's objection. The ruling was also characterised as an error of law on the face of the record, independently supporting relief in the nature of certiorari. Accordingly, the decision was quashed and the matter remitted to the Children's Court to be dealt with according to law, meaning the Children's Court must now properly consider the mother's s.18 objection in the exercise of its discretion.
Johnson J also recommended that a copy of the judgment be provided to the Attorney General for consideration of whether s.19 requires amendment, noting that its current drafting had generated genuine confusion.
Orders Made
- The record of the Children's Court proceedings of 3 February 2011 was directed to be removed into the Supreme Court
- The decision of the Children's Court was quashed, to the effect that s.19 did not operate to exclude the mother's s.18 application
- The proceedings were remitted to the Children's Court at Nowra to be dealt with according to law and consistently with the Supreme Court's judgment
- No order as to costs
- The judgment was recommended to be provided to the Attorney General for consideration of amendment to s.19 of the Evidence Act 1995
Key Takeaways
- Section 19 of the Evidence Act 1995 does not strip a parent of the right to make an objection under s.18 merely because charges against their child are domestic violence offences referred to in s.279 of the Criminal Procedure Act 1986. Section 279 concerns spouses only, and does not extend to the broader class of persons protected by s.18(2).
- A magistrate who misconceives the nature of the statutory power being exercised commits jurisdictional error, attracting relief in the nature of certiorari under s.69 of the Supreme Court Act 1970.
- Where jurisdictional error is established, the Supreme Court retains a discretion to grant prerogative relief even where both parties concede the error; the court independently assesses whether relief is appropriate.
- Under s.18, the availability of the objection and the ultimate outcome of the discretion are separate questions. Quashing the ruling here meant only that the Children's Court was required to properly hear and determine the mother's application; it did not predetermine that she would be excused from testifying.
- Johnson J's recommendation for legislative review signals that the drafting of s.19 creates ambiguity about its application to close personal relationship witnesses beyond spouses, an issue left for Parliament to resolve.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss.18, 19
- Criminal Procedure Act 1986 (NSW), s.279
- Supreme Court Act 1970 (NSW), s.69
- Director of Public Prosecutions Act 1986 (NSW), ss.9, 10
- Crimes Act 1900 (NSW), ss.58, 195
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Cases:
- Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
- Hoffenberg v District Court of New South Wales [2010] NSWCA 142
- Re Don [2006] NSWSC 1125
- R v EK [2009] NSWCCA 4; 75 NSWLR 302
- Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; 75 NSWLR 392
- Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
- Taikato v The Queen [1996] HCA 28; 186 CLR 454
- R v Steffan (1993) 30 NSWLR 633