Citation: R v Giannasca [2011] NSWSC 1683
Court: Supreme Court of New South Wales
Date: 25 November 2011
Judge(s): Price J
Background
The accused stood trial charged with the murder of his wife, who disappeared in January 2002. The Crown sought to call the victim's daughter (referred to as CV) as a prosecution witness. CV was the biological child of the victim and a different man, not the accused.
CV had lived with the accused and her mother from around age six until her mother's disappearance. She continued living with the accused until January 2003, when her biological father obtained a Family Court custody order. The accused had never formally adopted CV. Their relationship was that of stepfather and stepdaughter, arising from the accused's marriage to CV's mother, which was never dissolved.
CV objected to being required to give evidence, invoking s 18 of the Evidence Act 1995, which allows certain close relatives of a defendant to object to giving evidence for the prosecution. The question before the court was whether CV, as a stepchild, fell within the category of persons entitled to make such an objection.
Legal Issues
- Whether a stepchild falls within the definition of "child" in s 18(2) of the Evidence Act 1995 so as to attract a right to object to giving evidence for the prosecution.
- Whether the definition of "child" in the Evidence Act Dictionary, which uses both "means" and "includes", is exhaustive or capable of extension to stepchildren.
- Whether, even if the right to object existed, the balancing test under s 18(6) would have precluded CV from being required to give evidence.
Decision
Issue 1: Whether a stepchild falls within s 18(2)
Section 18(2) permits a defendant's "spouse, de facto partner, parent or child" to object to giving prosecution evidence. The term "child" is defined in the Evidence Act Dictionary as meaning "a child of any age" and including the meanings in subclause 10(1), which extends the term to adopted children, ex-nuptial children, and children living with the person as if a member of their family. The definition does not mention stepchildren.
Price J held that the ordinary meaning of "child" does not encompass a stepchild, and that the legislative definition, which uses the composite expression "means and includes", is exhaustive. Drawing on the High Court's analysis in BHP Billiton Iron Ore Pty Ltd v National Competition Council, his Honour found that this formulation conveys both enlargement and exclusion: it clarifies otherwise doubtful cases (such as adopted or ex-nuptial children) but does not extend beyond those relationships expressly identified. A stepchild is not among them.
Issue 2: Whether CV could be treated as a "child living with" the accused
CV's counsel argued that subclause 10(1)(b), which covers a child living with the person as if a member of the family, should be read broadly enough to include a child who intended to live with the defendant. Price J rejected this. CV had not lived with the accused for approximately eight years, and any intended future cohabitation did not satisfy the statutory language.
Issue 3: The s 18(6) balancing test (considered as an alternative)
Although the court's ruling on the threshold question made the balancing test unnecessary, Price J addressed it in the alternative. Even assuming CV had the right to object and that some harm to the relationship might result from her giving evidence, his Honour would not have been satisfied that such harm outweighed the desirability of receiving her evidence. The accused faced a murder charge, the most serious of offences. CV's evidence bore directly on the accused's motive and on the plausibility of his account of events, and no comparable evidence was otherwise available to the Crown. Those factors decisively outweighed any relational harm. CV was required to give evidence.
Orders Made
No orders were made in this decision.
Key Takeaways
- A stepchild does not fall within the definition of "child" in s 18(2) of the Evidence Act 1995 and therefore has no statutory right to object to giving evidence for the prosecution against a stepparent.
- The composite "means and includes" formulation in the Evidence Act Dictionary definition of "child" operates exhaustively: it enlarges the ordinary meaning to cover adopted children, ex-nuptial children, and children living with the person as a family member, but does not extend further to stepchildren.
- Under subclause 10(1)(b), the relevant question is whether the child is currently living with the defendant as a family member, not whether the child intends to do so in the future.
- Where the s 18(6) balancing test does apply, the gravity of a murder charge, the significance of the proposed evidence, and the absence of alternative evidence are weighty factors favouring the receipt of that evidence over the protection of a familial relationship.
- The relationship of stepparent and stepchild arises from the marriage of the stepparent to the natural parent and, following the High Court's analysis in R v Cook; Ex parte C, continues while that marriage remains undissolved, including after the natural parent's death.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 s 10(1), s 10(1)(b), s 18, s 18(2), s 18(6), s 18(7)
Cases
- BHP Biliton Iron Ore Pty Ltd v National Competition Council [2008] HCA 45; (2008) 236 CLR 145
- Brotherhood of Locomotive Firemen and Enginemen v Hogan (1934) 5 Fed Supp 598
- McGaughey v Grand Lodge AOUW of State of Minnesota (1921) 180 NW 1001;
- R v Cook; Ex parte C [1985] HCA 47; (1985) 156 CLR 249