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Supreme Court 11 August 2016

R v Quinn (No 1)

[2016] NSWSC 1101

Homicide
CRIMINAL LAW EVIDENCE OBJECTION TO WITNESS GIVING EVIDENCE EVIDENCE ACT 1995, S 18 WITNESS IS THE MOTHER OF THE ACCUSED ACCUSED HAS QUADRIPLEGIA

Citation: R v Quinn (No 1) [2016] NSWSC 1101
Court: Supreme Court of New South Wales
Date: 11 August 2016
Judge(s): Beech-Jones J

Background

The accused stood trial, before a judge alone, on a charge of murdering his former partner by stabbing her in the neck at their shared home in July 2013. The accused denied the killing was deliberate, contending the throat wound was accidental, and raised a defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW). Immediately after the fatal incident, the accused stabbed himself in the chest and neck, leaving him with quadriplegia.

The accused's mother was present at the property on the day of the killing. She was among the first people to reach the front yard after the victim was wounded, rendered assistance, and witnessed or heard the accused stab himself. She cooperated extensively with police in the immediate aftermath, providing a recorded interview at the scene, a signed six-page statement at a police station, and participating in a 40-minute video walk-through of the premises two days later. She also gave evidence at the committal proceedings in 2014.

The Crown sought to call the mother as a prosecution witness at trial. She objected under s 18 of the Evidence Act 1995 (NSW), arguing that giving further evidence would cause harm to her relationship with her son. That objection came before the court on the second day of trial.

  • Whether the accused's mother was entitled to object to being compelled to give evidence as a prosecution witness under s 18 of the Evidence Act 1995 (NSW).
  • Whether there was a likelihood that harm would or might be caused to the mother-son relationship if she gave evidence (s 18(6)(a)).
  • Whether the nature and extent of that harm outweighed the desirability of her evidence being given (s 18(6)(b)), having regard to the factors in s 18(7).

Decision

Beech-Jones J upheld the objection and excused the mother from giving oral evidence. His Honour worked through each of the factors listed in s 18(7) before applying the two-stage test in s 18(6).

On the gravity of the offence (s 18(7)(a)), the court acknowledged the strong public interest in the prosecution being able to call all material witnesses in a murder trial. The mother was undeniably an important witness as the first person on the scene. However, the court found this factor had to be weighed against the availability of other evidence, including three statements the mother herself had made in the immediate aftermath of the events. The Crown Prosecutor accepted that, if all that material were tendered, the Crown "would have the evidence it needs" on most topics. The one gap, being evidence about the relationship between the accused and the deceased immediately before the killing, could be addressed through other witnesses already available to the Crown.

Regarding the nature of the relationship (s 18(7)(d)), the court placed particular weight on the accused's quadriplegia. His Honour found that, irrespective of whether the accused remained in custody, the mother-son relationship would be of central importance to both of them for the rest of their lives. The accused's parents were likely to be his principal source of support, and damaging that relationship could carry especially severe consequences for him. The mother gave evidence on the voir dire that her relationship with her son had already deteriorated following the committal, and that she visited him frequently at hospital and in custody. The court accepted her assessment of the harm she feared.

Applying s 18(6), Beech-Jones J was satisfied both that harm to the relationship was likely if the mother gave evidence, and that the nature and extent of that harm outweighed the desirability of compelling her to testify. The accused's counsel confirmed she would not object to the tender of the mother's prior statements and committal evidence, meaning the prosecution retained access to substantial contemporaneous material.

Orders Made

• Mrs Quinn is not required to give oral evidence as a witness for the prosecution in the murder trial

Key Takeaways

  • Under s 18 of the Evidence Act 1995 (NSW), a parent of an accused may object to giving evidence as a prosecution witness, and a court must uphold that objection if both limbs of s 18(6) are satisfied: harm to the relationship is likely, and that harm outweighs the desirability of the evidence being given.
  • The existence of substantial alternative evidence, particularly prior statements made by the objecting witness in the immediate aftermath of events, weighs significantly in favour of upholding an objection under s 18(6)(b).
  • A serious disability affecting the accused can be a relevant circumstance when assessing the nature of the relationship under s 18(7)(d): the court treated the accused's quadriplegia as a factor that intensified the likely consequences of any relational damage.
  • Upholding a s 18 objection does not necessarily deprive the prosecution of the witness's evidence altogether. Prior statements and committal testimony may remain available for tender, subject to the Evidence Act's provisions including s 65.
  • The gravity of the offence, while a weighty consideration in a murder prosecution, does not automatically override the other factors in s 18(7): the balance is fact-specific and turns on the particular circumstances of the case.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 18, 65
- Crimes Act 1900 (NSW), s 23A
- Criminal Procedure Act 1986 (NSW), s 132

Cases cited: None cited in the judgment.