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Supreme Court 5 November 2015

R v Fletcher

[2015] NSWSC 1630

Assault & violenceHomicide
CRIMINAL LAW PROCEDURE OBJECTION NOT UPHELD

Citation: R v Fletcher [2015] NSWSC 1630
Court: Supreme Court of New South Wales
Date: 5 November 2015
Judge: Button J

Background

The accused stood trial for murder arising from an alleged assault on 18 June 2014 at the home of the deceased. The Crown alleged the accused struck the deceased forcefully to the head with a chair during an argument, with only two witnesses present at the relevant time.

One of those witnesses was the accused's daughter, referred to by the pseudonym "Andrea Parker" to comply with age-based publication restrictions. She was 14 at the time of the incident and 16 at the time of the hearing. In a recorded police interview taken shortly after the incident, she said she had been outside and listening to music on headphones and had not seen or heard much of what occurred. A separate witness, Ms Kay Henson, told police the daughter had given her a different, more incriminating account around the same time.

The daughter objected to being called as a Crown witness, relying on section 18 of the Evidence Act 1995 (NSW), which permits close relatives of an accused to object to giving evidence in criminal proceedings. The application was heard remotely, with the daughter giving evidence on oath and without a lawyer present.

  • Whether the daughter of the accused could successfully object to giving evidence as a Crown witness in her father's murder trial under section 18 of the Evidence Act 1995 (NSW)
  • Whether the likelihood of harm to the applicant or to her relationship with the accused outweighed the desirability of having her evidence given, applying the balancing test in section 18(6)
  • How the mandatory considerations listed in section 18(7) applied to the specific circumstances of the case

Decision

Button J applied the two-step test in section 18(6): first, whether there was a likelihood that harm would or might be caused to the applicant or her relationship with the accused if she gave evidence; and second, whether the nature and extent of that harm outweighed the desirability of having the evidence given. His Honour found the objection was not made out.

On the section 18(7) factors, Button J found the offence was the most serious known to law, and the applicant was one of only two witnesses compellable by the Crown who were present at the relevant time. The other witness, Mr Cavanough, was said to be an alcoholic whose reliability and credibility would likely be challenged by the defence. The applicant's evidence was considered potentially significant, including in the context of any self-defence issue, and was likely to attract substantial weight from the jury.

Button J accepted that the father and daughter shared a good and loving relationship, and acknowledged a "reasonably possible" risk of psychological, emotional, or relational harm to the applicant if compelled to give evidence. However, his Honour noted that the father would understand the daughter was acting under compulsory process, and that the applicant's own evidence was not particularly adverse to the accused's interests.

Weighing all mandatory factors, Button J was "soundly satisfied" that the potential harm did not outweigh the desirability of this important witness giving direct evidence about the act alleged to have caused death. The objection was accordingly rejected and the daughter was required to give evidence if called by either party.

Orders Made

• Ms Parker must give evidence if called by either party

Key Takeaways

  • Under section 18(6) of the Evidence Act 1995 (NSW), a court must weigh the likelihood and extent of harm to the objecting witness or their relationship with the accused against the desirability of having the evidence given. The test is not a simple comparison of evidential value against relationship quality.
  • The Supreme Court confirmed that the section 18(7) mandatory considerations operate as a structured checklist, each of which must be addressed before conducting the overall balancing exercise.
  • Where the offence charged is murder and the objecting witness is one of only two eyewitnesses available to the Crown, both factors weigh heavily in favour of compelling the evidence.
  • A reasonably possible, rather than certain or substantial, risk of relational or emotional harm does not necessarily satisfy section 18(6)(b), particularly where the gravity of the offence and the importance of the evidence are high.
  • The fact that an accused in custody may have urged a family member not to speak to police was not, in the circumstances, treated as casting an adverse light on the family relationship for the purposes of the section 18(7)(d) assessment.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 18, 18(6), 18(7)(a)-(e), 38, 65(2)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Procedure Act 1986 (NSW), s 306ZB(2)

Cases cited: No cases were cited in the judgment.