Citation: R v Xie (No 15) [2015] NSWSC 2126
Court: Supreme Court of New South Wales
Date: 23 June 2015
Judge(s): Fullerton J
Background
The accused stood trial for serious criminal offences. His wife had been called by the Crown as a prosecution witness and had been giving evidence before the jury over the course of ten days when an issue arose mid-cross-examination regarding her rights under s 18 of the Evidence Act 1995 (NSW).
Section 18 permits a spouse, de facto partner, parent or child of a defendant to object to giving evidence for the prosecution. Critically, s 18(4) places an obligation on the court to satisfy itself that such a person is aware of the section's effect if it appears they may have a right to object.
Neither the trial judge nor counsel had raised s 18 when the witness first took the stand. Both counsel had assumed the issue was resolved, partly because the witness had expressly declined to take the objection at the committal proceedings in 2012 and again before Johnson J in May 2014 during a prior (aborted) trial.
Legal Issues
- Whether the court was obliged under s 18(4) to satisfy itself that the witness was aware of her right to object, notwithstanding that she had previously and formally declined to exercise that right on two occasions before different judicial officers.
- Whether, had the witness taken the objection, the court would have been required under ss 18(6) and (7) to excuse her from giving further evidence.
Decision
Fullerton J addressed the s 18 issue in the absence of the jury by reminding the witness of her earlier indication to the committal magistrate. The witness's response revealed some confusion: she said she had understood at the time that she was required to give evidence, which suggested she may not have fully appreciated that participation was a choice she was entitled to make. The court allowed her to take further legal advice and, ultimately, new legal representation.
After conferring with a new counsel and returning to court, the witness confirmed she did not intend to make an objection under s 18. Her Honour was then satisfied that the witness was aware of the effect of the section and of her entitlement to object, and that she had freely decided not to exercise that right.
On the hypothetical question of what would have occurred had the witness taken the objection, Fullerton J observed that she would nonetheless have required the witness to give evidence. The witness was in ongoing contact with her husband through prison visits, their marriage had continued throughout his remand, and there was no evidence that giving evidence would cause her harm or damage her relationship with him. Furthermore, the witness's evidence was materially important: it included alibi evidence which, if not disproved beyond reasonable doubt by the Crown, would result in an acquittal.
Her Honour noted that the absence of harm was significant under the balancing exercise mandated by s 18(6), and that the substance and importance of the evidence weighed heavily against excusing the witness from testifying.
Orders Made
No orders were made in this decision.
Key Takeaways
- Section 18(4) of the Evidence Act 1995 (NSW) imposes an active obligation on the court to satisfy itself that a potential objector is aware of the section's effect, even where that person has previously declined to take the objection before other judicial officers.
- A prior election not to object, made in committal proceedings or an earlier trial, does not relieve the trial court of its s 18(4) obligation, particularly where there is any indication the witness may not have fully understood the nature of the right being waived.
- Where a witness does take an objection under s 18, the court must then undertake the balancing exercise under ss 18(6) and (7), weighing potential harm to the witness or the relationship against the desirability of the evidence being given, having regard to factors including the gravity of the offence, the importance of the evidence, and the availability of other evidence.
- Fullerton J confirmed that the timing provisions in s 18 do not prevent a witness from seeking legal advice, or even changing their position, after they have already commenced giving evidence.
- On the facts, the continued marital relationship, ongoing prison visits, and the critical nature of the alibi evidence would all have weighed against excusing the witness had an objection been taken.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 18(2), 18(3), 18(4), 18(6), 18(7)
- Criminal Procedure Act 1986 (NSW), s 93
Cases:
No cases were cited in the decision.