Citation: R v B.O. [2012] NSWDC 195
Court: District Court of NSW
Date: 24 September 2012
Judge: Judge Haesler SC
Background
The accused faced trial for the manslaughter of his then partner's 11-month-old child, who died from head injuries in February 2009. At the time of the death, the accused lived with his partner, the deceased infant, and his two sons aged seven and eleven. Both sons had been interviewed by police shortly after the child's death.
The Crown proposed to call both boys to give evidence at trial, using their recorded police interviews as evidence in chief. A previous trial had not concluded. At that earlier trial, the older son gave evidence but the younger son successfully objected under section 18 of the Evidence Act 1995, and the presiding judge declined to admit his recorded interview under section 65.
At the retrial, neither boy was separately represented. Both appeared with their mother, were sworn before the judge on a voir dire, and exercised their right to object to giving evidence against their father.
Legal Issues
- Whether the court should compel the accused's two sons to give evidence against their father under section 18 of the Evidence Act 1995, having regard to the likelihood of harm to the children and the balancing exercise required by sections 18(6) and 18(7)
- Whether, following a ruling under section 18(6) that the children need not give evidence, their prior recorded police interviews could nonetheless be admitted as hearsay evidence under section 65 of the Evidence Act 1995
- Whether section 18 continues to operate as a barrier even where evidence is sought to be adduced in hearsay form rather than directly from the witness
Decision
Issue 1: Compelling the children to give evidence (section 18)
Both boys were visibly distressed in the witness box. The judge accepted they had the cognitive and emotional capacity to understand what was happening, but neither was represented and no evidence was placed before the court to address the section 18(6) and 18(7) factors directly on their behalf.
Applying the section 18(6) balancing test, the judge found a real and substantial likelihood that harm might result if the boys were compelled to testify. The risk that, if their father were convicted, the boys might blame themselves for his punishment was significant and not merely speculative. While the evidence was corroborative, it was not indispensable: other Crown witnesses could address the infant's condition in the hours before death, and the defence suggestion that one of the boys may have caused the injuries could be managed by jury direction rather than by exposing the children to cross-examination on that point.
The judge also drew on the policy underlying the section, as reflected in the Australian Law Reform Commission's Report 26, that the criminal law should not disrupt family relationships to a greater extent than the community's interests genuinely require. Weighing all of these matters, the judge declined to compel either son to give evidence.
Issue 2: Admissibility of the recorded interviews under section 65
The Crown argued that, once the boys were "unavailable witnesses" for the purposes of clause 4 of the Dictionary to the Evidence Act 1995 (because of the section 18(6) ruling), their recorded interviews could be admitted as hearsay under section 65. The judge rejected this argument.
Section 18 prohibits the giving of evidence by the witness, and the judge held that evidence admitted under section 65 remains, in substance, evidence given by the witness whose prior representation it is. A purposive approach to interpretation, applying sections 33 and 34 of the Interpretation Act 1987 and the approach endorsed in Project Blue Sky v ABA (1998) 194 CLR 355, supported a construction of section 18 that operates regardless of the form in which the evidence is sought to be adduced. The policy concern, that a child may suffer harm from believing their evidence brought punishment upon a parent, applies equally whether evidence is given directly or through a prior recorded statement.
Issue 3: Separate balancing exercise under section 18 applied to the hearsay question
The judge acknowledged that, if section 65 were available in principle after a section 18(6) ruling, a separate balancing exercise under section 18(6) would still be required, with different weight accorded to the section 18(7) factors. Admitting a recording avoids the child being present in court or subjected to cross-examination, which is a relevant distinction.
Even conducting that separate analysis, the judge reached the same conclusion on the facts: the nature of the relationship between the boys and their father, the substance of the evidence, and the likelihood that harm would or might result meant the potential harm still outweighed the desirability of the evidence being given.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under section 18(6) of the Evidence Act 1995, a court must weigh the likelihood that harm would or might be caused to a witness against the desirability of having the evidence given, taking into account the factors in section 18(7); the threshold is "likelihood" that harm "would or might be caused," not a certainty.
- The District Court held that the risk of psychological harm to children from believing their evidence contributed to a parent's conviction is a real and substantial consideration in the section 18(6) analysis, even where the evidence in question is described as relatively neutral or corroborative.
- A section 18(6) ruling does not, in the view of this judge, automatically render a witness "unavailable" in a way that opens the door to admitting their prior recorded statements under section 65; section 18 was construed as operating to prohibit the giving of evidence in any form where proper objection has been upheld.
- Where a defence alternative hypothesis (here, that the children themselves may have caused the injuries) could be addressed by jury direction rather than by cross-examination of the children, that alternative is preferable where compelling the children to testify carries a risk of harm.
- A Victorian Supreme Court decision to contrary effect (DPP v Nicholls [2010] VSC 397) was noted but not followed, the judge observing that the specific point about the continued operation of section 18 in the hearsay context did not appear to have been argued in that case.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
- Interpretation Act 1987
Cases
- DPP v Nicholls [2010] VSC 397
- Project Blue Sky v ABA (1998) 194 CLR 355 R v Suteski (No 4) [2002] NSWSC 218; 128 A Crim R 275