Citation: R v Lardner (No 3) [2026] NSWSC 801
Court: Supreme Court of New South Wales
Date: 10 July 2026
Judge: Campbell J
Background
The accused stands charged with murder. A witness, a Dunghutti woman, objected to giving evidence for the prosecution under s 18 of the Evidence Act 1995 (NSW), which permits certain close family members of a defendant to decline to give evidence in criminal proceedings. The witness is not a biological, adopted, or step-child of the accused. Her relationship to the accused arises through Indigenous kinship: her mother and the accused's partner are cousins, and she addresses the accused as "Uncle Con."
The witness's application was supported by a report from a registered psychologist addressing the nature of kinship bonds in Indigenous communities, and by an affidavit the witness herself swore during the hearing. Campbell J allowed the witness's legal representative to re-open the application to file that affidavit, and the witness was cross-examined on it.
The central question was whether the witness qualified as a "child" of the accused under the extended statutory definition, and if so, whether the harm she would suffer by giving evidence outweighed the desirability of having that evidence before the court.
Legal Issues
- Whether the witness fell within the definition of "child" in the Evidence Act Dictionary, specifically the extended definition in Part 2, clause 10(1)(b), covering a child "living with the person as if the child were a member of the person's family"
- Whether Indigenous kinship relationships could satisfy the factual requirements of that extended definition
- If the witness qualified as a "child" of the accused, whether the balancing exercise under s 18(6) favoured upholding her objection
Decision
Issue 1: The extended definition of "child" and its constituent elements
Campbell J identified three elements that must each be established under cl 10(1)(b): the witness must be a "child" (interpreted as a person who was under 18 when the relevant relationship formed); the child must have been living with the defendant; and that living arrangement must have been as if the child were a member of the defendant's family. His Honour confirmed that the definition operates ambulatorily: once a qualifying relationship is formed during minority, it continues to be recognised after the person reaches adulthood. The reference to "a child of any age" in the general definition makes this clear.
Issue 2: The residential requirement
The word "living" imposes a residential requirement. Campbell J held that this demands significant, continuous co-habitation in the defendant's home with a degree of permanence extending at least into the foreseeable future. Occasional stays during school holidays or a summer break with a relative would not suffice. A split custody arrangement might qualify, but something more than casual or temporary residence is required.
Issue 3: Indigenous kinship and the factual inquiry
Campbell J accepted the psychologist's evidence that Indigenous kinship relationships may differ substantially from Western concepts of family. However, his Honour emphasised that the mere existence of an Indigenous kinship bond does not automatically satisfy cl 10(1)(b). The factual content of the particular relationship must still meet the specific statutory elements. The inquiry is highly fact-sensitive and ordinarily requires cogent evidence directed at each element in specific, not general, terms. Campbell J was satisfied on the balance of probabilities that the witness did qualify as a "child" of the accused within the extended definition.
Issue 4: The s 18(6) balancing exercise
Even having found the witness qualified as a "child," Campbell J was required to weigh the harm to her against the desirability of having her evidence given. Three matters weighed heavily in favour of the evidence being given. First, CCTV footage and other evidence placed the witness in the immediate vicinity when the fatal stabbing occurred, and her then-partner's statement indicated she described the confrontation while it unfolded. Second, a cousin at the scene appeared to have flagged down the witness's vehicle. Third, and most significantly, the accused was placed into the witness's car after the stabbing and she drove him to a location near South Kempsey, creating a real likelihood that he made statements to her during that journey. Campbell J concluded that the desirability of having the evidence given outweighed the nature and extent of the harm she might suffer.
Orders Made
- The Court found, on the balance of probabilities, that the witness is a "child" of the accused within the meaning of s 18(2) of the Evidence Act 1995 (NSW), as defined by Parts 1 and 2 and cl 10(1)(b) of the Dictionary to the Act.
- The Court found, under s 18(6) and having regard to the matters in s 18(7), that the nature and extent of the harm to the witness from giving evidence does not outweigh the desirability of having her give evidence.
- The witness's objection to giving evidence was overruled.
Key Takeaways
- Under cl 10(1)(b) of the Evidence Act Dictionary, a "child" living with a defendant "as if a member of the family" must have formed that relationship during minority; the child-parent relationship cannot arise after a person has turned 18, though once formed it persists into adulthood.
- Indigenous kinship structures are legally capable of supplying the factual foundation for the extended definition of "child" under cl 10(1)(b), but the specific content of the relationship must still satisfy each statutory element on the evidence. General expert evidence about kinship bonds alone is insufficient.
- "Living with" the defendant requires significant, continuous co-habitation with a degree of permanence. Periodic or holiday stays do not satisfy this threshold.
- Even where a witness qualifies as a "child" of the accused, the s 18(6) balancing exercise remains a distinct and substantive step. The potential probative value of the witness's evidence, including presence at a crime scene and private communications with the accused, can outweigh the harm of compelling the evidence.
- Disputed cl 10(1)(b) applications will ordinarily require cogent, specific evidence going to each element of the definition, not merely general evidence about the nature of the broader relationship.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 3, 18, Dictionary Pt 1 (definition of "child"), Pt 2 cl 10
Cases
- R v Fernando & Ors (No 1); Re a young person [2022] NSWSC 1535
- R v Lardner (No 2) [2026] NSWSC 786
- R v Sinai (No 4) [2021] NSWSC 779