Citation: R v Johnson (No 3) [2019] NSWSC 142
Court: Supreme Court of New South Wales
Date: 11 February 2019
Judge(s): Campbell J
Background
This interlocutory ruling arose during a murder trial in the Supreme Court. The accused stood charged with murdering a man at a shoe shop, and the Crown sought to call a witness who had been working at the shop at the time of the alleged offence.
The witness had been personally served with a subpoena but failed to appear on two separate occasions when called. She had told police she did not wish to attend court and provided medical certificates and a psychologist's letter purporting to explain her inability to do so.
The Crown Prosecutor applied under section 194 of the Evidence Act 1995 (NSW) for the issue of a warrant to compel the witness's attendance.
Legal Issues
- Whether the witness had been duly served with a subpoena, satisfying the procedural prerequisite under section 194
- Whether the witness's non-appearance was without just cause or reasonable excuse, notwithstanding the medical and psychological material she provided
- Whether the witness would probably be able to give relevant evidence in the proceedings, meeting the statutory threshold for issuing a warrant
Decision
Issue 1: Service of the Subpoena
The court was satisfied, on the affidavit of the serving officer, that the witness had been personally served with a subpoena at her home in December 2018 (at [3]). The officer's subsequent statement detailing multiple contacts with the witness about her attendance obligations reinforced that finding (at [3]).
Issue 2: Just Cause or Reasonable Excuse
This was the issue that required the most analysis. The witness had supplied a general practitioner's certificate and a document from a person describing herself as a psychologist, which attributed a diagnosis of PTSD to the witness and linked her symptoms to both the underlying events and the prospect of attending court (at [10]).
Campbell J held that a psychologist holding a Bachelor of Social Sciences and associate membership of a psychological society does not possess the specialised knowledge required under section 79 of the Evidence Act to make a clinical medical diagnosis of PTSD (at [11]). Notwithstanding some residual misgivings about the weight of that material, the court was satisfied that the witness had not established just cause or reasonable excuse for her non-appearance (at [12]). The court also observed that courts regularly encounter witnesses who experience anxiety about giving evidence, and that anxiety alone could not lightly be accepted as a sufficient basis to ignore a subpoena, particularly in a serious criminal trial (at [13]).
Issue 3: Relevance of the Witness's Evidence
The court accepted that the statutory threshold of relevance was relatively low (at [5]). Although the witness's evidence was not regarded as critical to the Crown's case, she had been present at the scene, had made a statement to police on the day of the events, and could contribute to the Crown's obligation to provide a full and complete narrative of the material facts (at [5]-[6]). That was sufficient to satisfy the requirement that she would probably be able to give relevant evidence (at [12]).
Orders Made
- Warrant ordered under section 194 of the Evidence Act 1995 (NSW), or otherwise under the Criminal Procedure Act, empowering any police officer to arrest the witness and bring her directly to court to give evidence.
Note: The judgment records that before the warrant was executed, the witness appeared voluntarily in answer to the subpoena and gave evidence.
Key Takeaways
- Under section 194 of the Evidence Act 1995 (NSW), a court may issue a warrant to compel a witness's attendance in criminal proceedings where the witness has been duly served with a subpoena, has failed to appear without just cause or reasonable excuse, and would probably be able to give relevant evidence (at [2]).
- A psychologist holding a Bachelor of Social Sciences and associate membership of a professional body does not, in the court's assessment, possess specialised knowledge sufficient under section 79 of the Evidence Act to make a medical diagnosis of PTSD; such a diagnosis falls within the domain of medical practitioners (at [11]).
- Medical certificates and psychological reports claiming anxiety or trauma do not automatically constitute just cause or reasonable excuse for failing to comply with a subpoena, particularly in serious criminal proceedings such as murder trials (at [12]-[13]).
- The statutory relevance threshold for issuing a warrant under section 194 is relatively low; evidence need not be critical to the Crown case to satisfy the requirement that the witness would probably be able to give relevant evidence (at [5]-[6]).
- In murder trials, courts weigh the obligations of citizens to comply with subpoenas heavily, given the gravity of the offence and the Crown's duty to present a full and complete narrative of the material facts (at [6]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 79, 194
Cases
- Not stated