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District Court 13 September 2018

R v Lewis (No 1)

[2018] NSWDC 261

Drugs
CRIME PRACTICE AND PROCEDURE

Citation: R v Lewis (No 1) [2018] NSWDC 261
Court: District Court of New South Wales
Date: 13 September 2018
Judge(s): Neilson DCJ

Background

The accused stood charged with manufacturing a large commercial quantity of methylamphetamine, an offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The Crown sought to call the accused's de facto partner as a witness in its case. She attended court in response to a subpoena issued at the request of the Director of Public Prosecutions.

The witness objected to being compelled to give evidence against her de facto spouse under section 18 of the Evidence Act 1995. She and the accused had re-established their relationship and were co-parenting their children following the events surrounding the alleged offence. She gave sworn evidence before the court about the emotional and financial harm she feared would result from being required to testify.

Legal Issues

  • Whether the witness could object to giving evidence against her de facto spouse under section 18 of the Evidence Act 1995.
  • Whether the nature and extent of the harm to the witness and her children outweighed the desirability of her giving evidence, having regard to the seriousness of the charge and the significance of her potential evidence to the Crown case.

Decision

Issue 1: The applicable test under section 18

The court applied section 18 of the Evidence Act 1995, which permits a person to object to giving evidence against a spouse or de facto partner in certain circumstances. Neilson DCJ followed the approach set out by the Court of Criminal Appeal in Decision Restricted [2017] NSWCCA 93, where Macfarlan JA delivered the principal judgment on the relevant provisions. The court led the witness through sworn evidence covering the matters required by sections 18(3), (6), and (7) before ruling on her objection.

Issue 2: Seriousness of the offence

The court acknowledged the charge was very serious. The offence of manufacturing a large commercial quantity of methylamphetamine carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years (at [6]). The court noted that the gravity of the charge weighed in favour of compelling the witness to testify.

Issue 3: Importance of the witness's evidence

The court found that the witness's potential evidence was not crucial to the Crown case (at [8]). Her evidence would primarily serve to prove that the accused had put forward a false alibi, which the Crown argued would demonstrate consciousness of guilt (at [7]). The Crown already had direct evidence from another witness and DNA evidence placing the accused at the scene, meaning the matters the witness could prove were otherwise covered (at [8]).

Issue 4: Nature of the harm and the relationship

The court found the emotional harm feared by the witness, both to herself and to her children, was real and inimical to the family structure she and the accused had rebuilt (at [5]). The court also had regard to the intimate nature of the relationship, including the co-parenting arrangement and shared household at the time of the alleged offence (at [9]). Weighing all the relevant factors under section 18(6)(b), the court held that the nature and extent of the harm outweighed the desirability of the witness giving evidence, and upheld her objection (at [10]).

Orders Made

  • The witness's claim to object to giving evidence against the accused was upheld.

Key Takeaways

  • Under section 18 of the Evidence Act 1995, a court must weigh the seriousness of the charge and the importance of the witness's evidence against the nature and extent of the harm that would result from compelling testimony. The District Court upheld the objection despite the gravity of the charge involved (at [6], [10]).

  • The relative importance of the witness's evidence to the Crown case is a significant factor. Here, the court found that because the evidence would only serve to prove a false alibi and the Crown had other evidence covering the same ground, the witness's testimony was not crucial (at [7]-[8]).

  • Harm to children of the relationship is a cognisable consideration when a court assesses the extent of harm under section 18. Neilson DCJ found that the emotional harm to both the witness and her children was genuine and weighed in favour of upholding the objection (at [5]).

  • A de facto relationship, including a shared household and co-parenting arrangement even where physical intimacy had ceased, can satisfy the relational requirements of section 18, and may engage the intimacy-of-disclosure considerations in section 18(7)(e) (at [9]).

  • The Court of Criminal Appeal's decision in Decision Restricted [2017] NSWCCA 93 was treated as authoritative guidance on the procedure and substance of section 18, including the requirement to lead sworn evidence from the objecting witness addressing the statutory criteria before ruling (at [4]-[5]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995

Cases
- Decision Restricted [2017] NSWCCA 93