Citation: R v Walmsley-Hume; R v Walmsley (No 5) [2024] NSWSC 1694
Court: Supreme Court of New South Wales
Date: 28 July 2024
Judge: Wright J
Background
Two accused faced a murder charge arising from a fatal incident on 24 February 2022, in which the deceased was struck by a white utility vehicle near Old Southern Road, South Nowra. The central question for the first accused was whether he intended to kill or cause grievous bodily harm when he drove the vehicle. The second accused faced issues concerning her participation in any joint criminal enterprise, and alternatively, whether she was an accessory after the fact to murder.
The father of the first accused was called as a Crown witness. He had previously given a police interview on 1 March 2022 covering the events of that night, communications between himself and his son, and other relevant incidents. When required to give evidence at trial, the father invoked his right under s 18 of the Evidence Act 1995 (NSW) to object to testifying as a prosecution witness against his child.
The father gave evidence of mental health diagnoses including anxiety, depression, and post-traumatic stress disorder, and described two recent suicide attempts, which he attributed in part to being served with a subpoena. He also expressed concern that giving evidence would damage any prospect of reconciling with his son. However, no medical evidence or supporting documentation was tendered in support of these claims.
Legal Issues
- Whether the father qualified to object under s 18 of the Evidence Act 1995 (NSW) as the parent of a defendant in a criminal proceeding
- Whether s 18(2)(a) permits a parent to object to giving any evidence as a prosecution witness, even where that evidence may relate to matters involving a co-accused rather than solely the parent's child
- Whether the harm to the witness (or to the relationship between the witness and his son) outweighed the desirability of having the evidence given, applying the balancing test in s 18(6) and s 18(7)
- What weight, if any, should be given to the fact that the witness had previously received a sentencing discount in exchange for an agreement or undertaking to give evidence in this very trial
Decision
Wright J confirmed that s 18(2)(a) permits a parent to object to giving any evidence as a prosecution witness, not merely evidence directed against their child. This construction accords with the plain wording of the provision and is consistent with the High Court's approach to joint criminal trials and the Evidence Act generally, as explained in McNamara v the King (2023) 280 CLR 201.
The court then applied the balancing test under s 18(6), taking into account the factors listed in s 18(7). These included the gravity of a murder charge, the substance and importance of the father's evidence, the availability of alternative evidence (notably the recorded police interview, potentially admissible under s 65), and the nature of the father and son's relationship. Wright J noted that no confidentiality attached to the relevant conversations for the purposes of s 18(7)(e).
A significant development during submissions was the disclosure that the father had received a total sentencing discount of 20 percent on unrelated offending, comprising 12.5 percent for a future undertaking to give evidence in this trial and 7.5 percent for his past police interview. Wright J held that this information was material in two respects. First, there is a public interest in holding the father to his undertaking. Second, the father's own prior decision to accept that discount demonstrated that he had assessed the harm to his mental health and his relationship with his son as outweighed by the benefit of a reduced sentence.
Wright J concluded that the nature and extent of the harm to the witness, or to the relationship between witness and accused, did not outweigh the desirability of having the evidence given. The objection was not upheld.
Orders Made
- The objection made by the witness under s 18 of the Evidence Act 1995 (NSW) was not upheld.
- The witness was required to give evidence.
Key Takeaways
- Section 18(2)(a) of the Evidence Act 1995 (NSW) permits a parent to object to giving any evidence as a prosecution witness, extending beyond evidence directed solely against that parent's child, even in joint criminal trials involving co-accused.
- The balancing test in s 18(6) requires a court to weigh the nature and extent of harm to the witness or the witness-defendant relationship against the desirability of having the evidence given, with s 18(7) supplying a non-exhaustive list of mandatory considerations.
- Where a witness has previously received a sentencing discount in exchange for an undertaking to give evidence, both the public interest in adherence to that undertaking and the witness's own implicit assessment of the harm carry significant weight in the s 18(6) analysis.
- Absence of supporting medical evidence or documentation may reduce the weight a court attaches to a witness's claims of psychological harm, even where those claims are made on oath.
- In dismissing the objection, Wright J observed that much of the harm to the father-son relationship had likely already occurred through the father's earlier police interview, for which a separate past-assistance discount had already been received.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 18, 65
Cases
- McNamara v the King (2023) 280 CLR 201; [2023] HCA 36
- LS v Director of Public Prosecutions (NSW) (2011) 81 NSWLR 551; [2011] NSWSC 1016
- R v A1 (No 2) [2019] NSWSC 663
- R v Barakat; R v Younes (No 3) [2016] NSWSC 1256
- R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592