Citation: R v Barakat; R v Younes (No 3) [2016] NSWSC 1256
Court: Supreme Court of NSW
Date: 9 September 2016
Judge: N Adams J
Background
The accused Younes faced a charge of being an accessory after the fact to murder, arising from a shooting at Abbotsbury on 12 July 2013. His co-accused Barakat faced a charge of the murder itself. The Crown sought to call the accused's wife as a witness in its case against her husband.
The wife had never given a statement to police, but four communications attributed to her had been captured: a telephone call she made to Bankstown Police Station and three text messages she sent, one to her husband and two to the co-accused Barakat. On their face, those communications were potentially consistent with her having some knowledge of Barakat's involvement in the murder.
Counsel appeared on the wife's behalf and objected under s 18(1) of the Evidence Act 1995 (NSW) to her being compelled to give evidence against her husband. A "Basha" inquiry was conducted to examine what evidence she could actually give if required to testify, during which the Crown was granted leave to ask her leading questions under s 38.
Legal Issues
- Whether there was a likelihood that harm might be caused to the wife or to her relationship with her husband if she were compelled to give evidence (s 18(6)(a) of the Evidence Act).
- Whether the nature and extent of that harm outweighed the desirability of having the evidence given (s 18(6)(b)), having regard to the mandatory considerations in s 18(7).
Decision
Issue 1: Likelihood of harm
The court found that the threshold under s 18(6)(a) is low. As Bellew J had observed in R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592, the word "might" in the subsection denotes a possibility rather than a probability, and there is no requirement to find that harm is certain before the section is engaged (at [26]). Adams J was satisfied that there was a likelihood that harm might be caused both to the wife personally and to her relationship with her husband if she were compelled to testify. The wife gave direct evidence that being required to give evidence would ruin her marriage and that divorce was a real prospect (at [30]).
Issue 2: Balancing exercise under s 18(6)(b)
The court conducted the mandatory balancing exercise by reference to the five considerations in s 18(7) and found that the nature and extent of the harm outweighed the desirability of the wife giving evidence (at [30]).
On the gravity of the offence, the court accepted the Crown Prosecutor's concession that the alleged conduct fell towards the lower end of the range of objective seriousness for accessory after the fact to murder. The Crown case rested solely on the accused's failure to name Barakat as the driver of his vehicle when requested to do so (at [31]).
On the importance and weight of the evidence, the court found that the wife's actual testimony would weaken rather than strengthen the Crown case. She denied any conversation with her husband about Barakat's involvement in the murder, offered explanations for the call and text messages, and those explanations were supported by other independent material in the Crown brief (at [33]). If her evidence were accepted, the Crown case was weakened; if rejected, it was strengthened, but her evidence could not simply be discounted (at [35]). The court also noted that the Crown Prosecutor had confirmed he would not adduce the call or text messages if the wife was not required to testify (at [36]).
On the availability of other evidence, the Crown Prosecutor confirmed that sufficient other material existed to proceed against the accused, including surveillance, telephone intercepts, CCTV footage and a recorded conversation between the two co-accused made in a police cell (at [37]). The court also took into account the wife's current pregnancy with her third child and her visible distress during the Basha inquiry (at [41]).
Orders Made
- The objection made under s 18(2) of the Evidence Act 1995 (NSW) by the accused's wife is upheld.
- Pursuant to s 18(6) of the Evidence Act, the wife must not be required to give evidence at the trial of either accused.
Key Takeaways
- Under s 18(6)(a) of the Evidence Act 1995 (NSW), the threshold for establishing that harm "might" be caused is a possibility rather than a probability; certainty of harm is not required before the section is engaged (at [26]).
- A spouse's direct evidence that being compelled to testify would ruin the marital relationship and likely result in divorce constitutes particular identified harm sufficient to satisfy the first limb of s 18(6) (at [29]-[30]).
- Where a spouse's actual testimony at a Basha inquiry would weaken the Crown case, and where independent material in the Crown brief supports the spouse's explanations, the importance and weight of that evidence is a factor that may favour upholding the objection rather than compelling testimony (at [33]-[35]).
- The relative gravity of the offence against which the spouse is being asked to testify is a significant consideration in the balancing exercise: that the accused was charged as an accessory after the fact, with conduct at the lower end of objective seriousness, weighed against compelling testimony (at [31]-[32]).
- The availability of other independent evidence to prove the Crown's case reduces the desirability of compelling spousal testimony, and the Crown's indication that certain evidence would be withdrawn entirely if the objection succeeded reinforced that the overall evidentiary loss was limited (at [36]-[37]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 18, 38
Cases
- Basha v R (1989) 39 A Crim R 337
- R v Flentjar (No 2) [2008] NSWSC 648
- R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592
- R v Stanford, Marcus [2016] NSWSC 1174