R v A1 (No. 2) [2019] NSWSC 663

R v A1 (No. 2) [2019] NSWSC 663

C1 had genuine and real concerns about harm if required to give evidence concerning the redacted conduct of the deceased, satisfying the low threshold in s.18(6)(a). In the balancing exercise, murder was a very grave charge and C1's evidence was important to the Crown case on several circumstantial matters, but the redacted topic was principally relevant to motive, was of limited additional probative value, and was supported by other available evidence. Because s.18 permits a ruling confined to a discrete topic where that topic is the source of the likelihood of harm, the objection was overruled generally but upheld as to questions concerning the redacted conduct of the deceased. The...

Jurisdiction
Australia
Judgment Date
07 June 2019
Procedural Posture
Criminal Pre Trial Application in a Murder Prosecution / Reasons for Pre Trial Orders Concerning a S.18 Evidence Act 1995 Objection and Audio Visual Link Evidence
Outcome
C1's s.18 objection was partially overruled and partially upheld; C1 was permitted to give evidence by audio-visual link if she elected to do so.
Legal Topics
['compellability of Spouse as Prosecution Witness' 'objection Under S.18 Evidence Act 1995' 'risk of Harm to Witness' 'partial Severance of Evidence Topics' 'judicial Comment on Failure to Give Evidence' 'audio Visual Link Evidence']
['criminal Law' 'evidence' 'criminal Procedure'] ['compellability of Spouse as Prosecution Witness' 'objection Under S.18 Evidence Act 1995' 'risk of Harm to Witness' 'partial Severance of Evidence Topics' 'judicial Comment on Failure to Give Evidence' 'audio Visual Link Evidence']

Case Brief

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Procedural Posture

Criminal Pre Trial Application in a Murder Prosecution / Reasons for Pre Trial Orders Concerning a S.18 Evidence Act 1995 Objection and Audio Visual Link Evidence

Legal Issues

  1. 1 ['Whether C1, the wife of the Accused, should be required to give evidence for the prosecution despite her objection under s.18 Evidence Act 1995.' 'Whether the likelihood of harm to C1 if she gave evidence on a discrete redacted topic outweighed the desirability of that evidence being given.' "Whether s.18 Evidence Act 1995 permits an objection and ruling to operate only in relation to part of a witness's evidence rather than requiring an all-or-nothing approach." 'Whether the Judge could make a neutral comment to the jury concerning the absence of evidence from C1 on the redacted topic.' 'Whether C1 could give evidence by audio-visual link.']

Ratio Decidendi

C1 had genuine and real concerns about harm if required to give evidence concerning the redacted conduct of the deceased, satisfying the low threshold in s.18(6)(a). In the balancing exercise, murder was a very grave charge and C1's evidence was important to the Crown case on several circumstantial matters, but the redacted topic was principally relevant to motive, was of limited additional probative value, and was supported by other available evidence. Because s.18 permits a ruling confined to a discrete topic where that topic is the source of the likelihood of harm, the objection was overruled generally but upheld as to questions concerning the redacted conduct of the deceased. The...

Court Disposition

C1's s.18 objection was partially overruled and partially upheld; C1 was permitted to give evidence by audio-visual link if she elected to do so.

Orders

  • ['I overrule the objection by C1 under section 18 of the Evidence Act 1995 to her giving evidence at the trial of the accused, with the exception of questions as to [conduct of deceased redacted]. The witness C1 will not be required to answer questions on that topic.' 'I direct that the evidence of C1 can be given...