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Supreme Court 19 July 2022

R v Fernando & Ors (No 1); Re a young person

[2022] NSWSC 1535

HomicidePublic order & justice offences

Citation: R v Fernando & Ors (No 1); Re a young person [2022] NSWSC 1535
Court: Supreme Court of New South Wales
Date: 19 July 2022
Judge(s): Fullerton J

Background

Seven accused, including two individuals identified by pseudonyms SG and JOS, faced trial for the murder of a man at Girraween on 30 December 2019. The Crown alleged the accused entered into a joint criminal enterprise to confront and assault the deceased at his home unit, motivated by a claimed sexual assault. The deceased was lured to an underground car park and fatally assaulted.

A 17-year-old young person, closely related to both SG and JOS and identified only by the generic description "the young person," was subpoenaed to give evidence for the Crown against JOS. The Crown's case relied partly on admissions the young person told police that JOS had made to him about participating in the killing.

The young person, represented by the Aboriginal Legal Service, brought an application under section 18 of the Evidence Act 1995 (NSW) to be relieved of giving evidence entirely, including of his recorded police interview. Pseudonyms were applied throughout to protect his identity.

Legal Issues

  • Whether the young person should be excused from giving oral evidence against JOS (and by extension SG) under section 18 of the Evidence Act 1995 (NSW)
  • Whether the harm or potential harm of requiring him to give evidence outweighed the desirability of that evidence being given, under the section 18(6) balancing exercise
  • Whether the circumstances in which the young person's police interview was conducted, including the absence of an adult support person and failure to inform him he might become a witness, were relevant factors in that balancing exercise
  • Whether the Crown could tender the young person's recorded police interview under section 65 of the Evidence Act if he was excused from giving oral evidence

Decision

Issue 1: The section 18(6) balancing exercise

Section 18 of the Evidence Act permits a court to excuse a witness from giving evidence where the harm of doing so outweighs the desirability of the evidence being given. Fullerton J interpreted the concept of "harm" broadly to include potential damage to the young person's relationships with the two accused and with his extended family (at [34]). The court found this potential relational harm, arising from the young person testifying against close family members in a murder trial, was a material consideration (at [35]).

Issue 2: Aboriginality and relational harm

The court found that the young person's Aboriginal identity, shared with both accused and grounded in common cultural and familial connections to country, amplified the weight of potential relational harm (at [35]). Evidence from Mr Kevin Smith of the Aboriginal Legal Service was given particular weight on this point (at [36]). The court acknowledged that the young person's hopes that family relationships would survive his giving evidence did not eliminate the risk of future harm as he matured into adulthood (at [35]).

Issue 3: Circumstances of the police interview

The court found the circumstances of the young person's interview were deserving of weight in the balancing exercise (at [37]). These included the exclusion of his guardian from the interview room despite her repeated requests to be present, the absence of any opportunity for the young person to obtain legal advice, and the failure of police to inform him that speaking to them could result in him being called as a witness against close family members (at [32], [37]).

Issue 4: Psychological evidence and overall conclusion

The psychologist Ms Dombrowski did not identify any pre-existing psychological vulnerability that would make the experience of testifying more onerous for the young person than the inherent stress of that scenario for any young person (at [23]). Despite this, the court concluded that the potential burden of giving evidence against a close family member in a murder trial was considerable, and that burden was exacerbated by his Aboriginality and the trauma associated with potential long-term separation from those family members following conviction (at [39]). The court was satisfied the harm outweighed the desirability of his giving evidence (at [39]).

Issue 5: The police interview under section 65

Once the court resolved the section 18 application in the young person's favour, the Crown confirmed it would not seek to tender the recorded police interview under section 65 of the Evidence Act as a hearsay exception (at [29]). This made it unnecessary for the court to resolve the conflict between New South Wales and Victorian authorities on the interrelationship between sections 18 and 65 (at [29]).

Orders Made

  • The young person is excused from giving evidence in the trial of the close relatives.

Key Takeaways

  • Under section 18(6) of the Evidence Act 1995 (NSW), the concept of "harm" is to be given a broad interpretation that encompasses potential damage to a witness's close personal and family relationships, not only direct psychological or physical harm to the witness (at [34]).

  • A witness's Aboriginal identity, and shared cultural and familial connections to country with the accused, are factors capable of amplifying the weight given to relational harm in the section 18(6) balancing exercise (at [35]).

  • The circumstances in which a young person is interviewed by police, including the exclusion of a support person and a failure to inform the young person that cooperation could lead to them being called as a witness against family members, are relevant considerations in the section 18 balancing exercise even where those circumstances do not undermine the evidentiary weight of the interview itself (at [37]).

  • The absence of identifiable psychological vulnerability in a young witness does not foreclose a finding that the potential harm of giving evidence outweighs its desirability; the court assessed harm by reference to the broader circumstances, including the witness's age, Aboriginality, and the nature of the relationships at stake (at [23], [39]).

  • Where a court grants a section 18 application to excuse a witness from giving evidence, the Crown's decision not to separately tender that witness's recorded police interview under section 65 of the Evidence Act as a hearsay exception may leave unresolved the question of whether sections 18 and 65 operate independently of each other (at [29]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Court Suppression and Non-Publication Act 2010 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases
- DPP v Nicholls [2010] VSC 397
- Fletcher v R [2015] VSCA 146
- R v A2; R v KM; R v Vaziri (No 4) [2015] NSWSC 1306
- R v BO [2012] NSWDC 195
- R v Flentjar (No 2) [208] NSWSC 648
- R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592