Citation: R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592
Court: Supreme Court of New South Wales
Date: 26 May 2015
Judge(s): Bellew J
Background
Two accused, a former police officer and a private investigator, were jointly charged with the murder of a young man and the supply of 2.78 kilograms of methylamphetamine on 20 May 2014. The Crown alleged the deceased had arranged to supply the drug to one of the accused, and that both accused were present at a storage facility in Padstow where the deceased was killed. The joint trial was listed to commence on 20 July 2015.
The daughter of one of the accused had provided two statements to police and was listed as a Crown witness. She objected to giving evidence, invoking s 18 of the Evidence Act 1995 (NSW), which permits a close family member of an accused to object to being compelled to testify.
A further and significant complication arose. Evidence emerged that the solicitor then acting for her father had made statements to the witness that Bellew J characterised as threatening in nature. Those communications formed part of the factual context the court considered when assessing the harm likely to flow from compelling her to give evidence.
Legal Issues
- Whether the witness, as the daughter of one of the accused, was entitled under s 18 of the Evidence Act 1995 (NSW) to object to giving evidence.
- Whether there was a "likelihood" of "harm" to the witness personally if she were compelled to testify.
- Whether there was a "likelihood" of harm to the relationship between the witness and her father if she gave evidence.
- Whether, on the balancing exercise required by s 18(7), the nature and extent of that harm outweighed the desirability of having the evidence given.
- If the s 18 objection was upheld, whether the separate motions brought by each accused to exclude her evidence would thereby be resolved.
Decision
Section 18 of the Evidence Act 1995 (NSW) confers on a spouse or certain close family members of an accused the right to object to giving evidence. The court must then conduct a balancing exercise under s 18(7), weighing the harm likely to result from compelling the witness to testify against the public interest in having all relevant evidence placed before the court.
Bellew J found that there was a likelihood of harm to the witness herself, in part because of the threatening nature of statements made to her by the solicitor acting for her father. His Honour also found a likelihood of harm to the relationship between the witness and her father if she were compelled to give evidence against him.
While the Crown pressed the public interest in having relevant evidence adduced at trial, Bellew J held that this consideration, though important, was not determinative. His Honour observed that the substance of the evidence in question was of limited scope, and that this factor informed the weight to be given to the public interest side of the balance.
Having conducted the balancing exercise, Bellew J concluded that the harm outweighed the desirability of receiving the evidence. The objection was upheld, which also resolved the accused persons' separate motions seeking exclusion of the witness's evidence. Separately, Bellew J directed that a copy of the judgment be forwarded to the Professional Standards Division of the Law Society of NSW, given his conclusions about the conduct of the solicitor who had made the threatening statements to the witness.
Orders Made
- The objection made under s 18(2) of the Evidence Act 1995 (NSW) by the witness was upheld.
- Pursuant to s 18(6) of the Evidence Act 1995 (NSW), the witness must not be required to give evidence at the trial of the two accused.
Key Takeaways
- Under s 18 of the Evidence Act 1995 (NSW), a court must conduct a genuine balancing exercise when a close family member of an accused objects to giving evidence: the public interest in having relevant evidence adduced does not automatically prevail.
- "Likelihood" of harm, as required by s 18, does not demand certainty; the threshold is a real and not merely theoretical prospect that harm will result.
- Harm cognisable under s 18 extends to both personal harm to the witness and harm to the family relationship, each capable of independently supporting an objection.
- The limited evidential value of the proposed testimony was a relevant factor on the public-interest side of the balancing exercise, reducing the weight to be assigned to compelling the witness to testify.
- Threatening communications made by a legal representative to a prospective witness may themselves constitute relevant evidence of likely harm in a s 18 application, and may also attract scrutiny from the Law Society's Professional Standards Division.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 18, 18(2), 18(6), 18(7)
Cases
- R v Flentjar (No 2) [2008] NSWSC 648
- Tillmanns Butcheries Pty Limited v Australian Meat Industry Employees' Union (1979) 27 ALR 367