Citation: R v Manuel (No 2) [2015] NSWSC 1563
Court: Supreme Court of New South Wales
Date: 14 October 2015
Judge(s): Campbell J
Background
The accused stood trial for murder, alleged to have struck the deceased more than once with a length of timber. Neither the striking nor the causal link to death was in dispute at trial. The central contest concerned other elements of the charge.
The Crown called the accused's mother to give evidence. Her anticipated evidence included an admission the accused had made to her about striking the deceased and his belief that he may have killed him.
The question before the court arose from provisions of the Evidence Act 1995 (NSW) governing whether a close family member can be compelled to give evidence against an accused. Section 18 provides a discretion for a court to excuse such a witness from giving evidence where they object.
Legal Issues
- Whether the court needed to exercise the discretion under s 18(6) of the Evidence Act 1995 (NSW) to excuse the accused's mother from giving evidence
- Had the discretion been engaged, whether the potential harm to the mother-son relationship would have outweighed the desirability of receiving the evidence
Decision
Issue 1: Whether s 18(6) Discretion Was Engaged
The accused's mother did not object to giving evidence, having previously given evidence at the first trial of the matter. Because she did not object, no occasion arose for the court to exercise the s 18(6) discretion (at [3]). The discretion under that provision is only enlivened where the witness objects to giving evidence.
Issue 2: Whether the Discretion Would Have Been Exercised in the Witness's Favour
Campbell J observed, for completeness, that even if the witness had objected, he would not have exercised the discretion in her favour (at [4]). The witness had a good and loving relationship with her son, and her reluctance stemmed from not wanting to participate in a process that might result in his conviction and imprisonment. The judge found that reluctance, while understandable, was not the kind of harm to the relationship that s 18(6) contemplates (at [5]).
The harm to the relationship was described as "highly theoretical." Any adverse effect on the relationship depended on the jury's verdict rather than on anything the witness or the court might do (at [5]). The judge also noted that the evidence she was likely to give could potentially be used to the accused's advantage by defence counsel, further diminishing the weight of any anticipated harm against the desirability of receiving the evidence (at [5]).
Orders Made
- The discretion under s 18(6) of the Evidence Act 1995 (NSW) was not engaged.
Key Takeaways
- Section 18(6) of the Evidence Act 1995 (NSW) only confers a discretion to excuse a close family member witness where that witness actually objects to giving evidence; without an objection, the discretion does not arise (at [3]).
- A witness's reluctance to give evidence because of concern about the outcome for an accused is not, of itself, the kind of harm to a relationship that s 18(6) contemplates (at [4]-[5]).
- Where any harm to a family relationship would depend on the jury's verdict rather than on the act of giving evidence itself, Campbell J regarded that harm as too remote and theoretical to outweigh the desirability of the evidence being received (at [5]).
- The potential for the Crown witness's evidence to be used to the accused's advantage in cross-examination was a factor the court weighed against excusing the witness under the section (at [5]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Not stated