Citation: R v Lardner (No 6) [2026] NSWSC 845
Court: Supreme Court of New South Wales
Date: 15 July 2026
Judge(s): Campbell J
Background
The accused stands trial for murder, with self-defence as the principal issue raised by the defence. The prosecution called a witness, Ms Davis, who had been brought to court under a warrant after failing to appear pursuant to a subpoena.
Ms Davis was not a biological child of the accused. However, when she began giving evidence on a voir dire (a hearing held to determine a preliminary question outside the presence of the jury), she volunteered almost immediately that the accused was "like a father" to her, asserting a lifelong relationship with him. Her solicitor then raised an objection to her being compelled to give evidence against the accused, relying on the protections available to a "child" of an accused under s 18(2) of the Evidence Act 1995 (NSW).
The court had previously addressed a similar objection from another witness in R v Lardner (No 3) [2026] NSWSC 801. This decision applied the same analysis to Ms Davis's circumstances.
Legal Issues
- Whether Ms Davis qualifies as a "child" of the accused under the extended definition in Part 2, cl 10(1)(b) of the Dictionary to the Evidence Act, which covers a child who lived with the accused as if a member of the accused's family.
- If Ms Davis does qualify, whether the court should nonetheless require her to give evidence under s 18(6)-(7) of the Evidence Act, by weighing the likely harm to her or to her relationship with the accused against the desirability of having her evidence given.
Decision
Issue 1: Whether Ms Davis is a "child" of the accused under the extended definition
Campbell J applied the three-element framework he had identified in Lardner (No 3). The court considered an affidavit from the accused's biological daughter, Ms Donovan, which described Ms Davis living in the Lardner household during primary and junior high school. Although the affidavit contained chronological gaps, the court was satisfied on the balance of probabilities that Ms Davis had lived in the household as a member of the family while she was under 18 years of age.
The court found those periods of co-residence were relatively long and would have seemed permanent from the perspective of a child. Critically, Ms Donovan's affidavit described the accused treating Ms Davis in the same manner as his biological children, with the court satisfied this demonstrated the care, support and authority characteristic of a parental relationship. All three elements of the extended definition were met, and Ms Davis was entitled to raise the objection under s 18(2).
Issue 2: Whether the court should nonetheless require Ms Davis to give evidence
Under s 18(6), the court must not compel a qualifying witness to testify if the nature and extent of the likely harm to that person or to their relationship with the accused outweighs the desirability of having the evidence given. Section 18(7) sets out mandatory (though not exhaustive) considerations.
The court acknowledged the seriousness of the harm that compelling family members to testify can cause, particularly to the broader community, and accepted that Ms Davis was finding the situation genuinely difficult. However, several countervailing factors weighed heavily. The charge was murder, described as the most serious offence short of treason. Ms Davis was, on the court's assessment, an eyewitness to the fatal interaction between the accused and the deceased, and had assisted the accused immediately afterwards. No other witness in the trial had provided a direct account of those events, which was critical given the self-defence issue at the heart of the case. There was also no evidence that compelling her testimony would require disclosure of confidential communications with the accused. Campbell J was not satisfied that the nature and extent of the likely harm outweighed the desirability of receiving her eyewitness account, and directed that she give evidence.
Orders Made
- Ms Davis is entitled to raise the objection under s 18(2) of the Evidence Act on the basis that she is a "child" of the accused within the extended definition in Part 2, cl 10(1)(b) of the Dictionary.
- Notwithstanding that objection, Ms Davis is directed to give evidence in the trial.
- Leave was granted to the prosecution to rely on agreed facts from Ms Davis's Local Court guilty plea (hindering the apprehension of the accused) for the purpose of the s 18(6)-(7) balancing exercise.
Key Takeaways
- The extended definition of "child" in Part 2, cl 10(1)(b) of the Dictionary to the Evidence Act 1995 (NSW) can apply to a person with no biological connection to the accused, provided the court is satisfied on the balance of probabilities that the person lived with the accused as a member of the family while under 18, and that the accused exercised parental care, support and authority toward them.
- Chronological gaps or imprecision in the evidence do not necessarily defeat an application under the extended definition, provided there is a sufficient "critical mass" of evidence establishing the requisite living arrangement and relationship.
- Satisfying the threshold under s 18(2) does not automatically prevent compulsion. Section 18(6)-(7) requires a further, fact-intensive balancing exercise specific to each witness's circumstances.
- Where a witness is the only available eyewitness to the alleged offence and no direct account of the events has otherwise been placed before the court, the desirability of having that evidence given can outweigh significant relational harm, even in a murder trial where self-defence is in issue.
- The Supreme Court noted that a direction compelling reluctant testimony, rather than volunteered testimony, may itself be a relevant consideration: the accused would understand that the witness gave evidence because required to do so by the court, not by choice.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 18, Dictionary, Pt 2, cl 10
Cases
- R v Lardner (No 2) [2026] NSWSC 386
- R v Lardner (No 3) [2026] NSWSC 801