R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592

R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592

The court found that requiring Ms McNamara to give evidence posed a significant likelihood of psychological harm to her and substantial harm to her relationship with her father. The gravity of the charges and the limited unique value of her evidence were outweighed by the severity of the likely harm. Thus, under s. 18(6) Evidence Act, she should not be compelled to give evidence.

Jurisdiction
Australia
Judgment Date
26 May 2015
Procedural Posture
Criminal / Procedural Ruling Prior to Trial
Outcome
Objection upheld. Witness not to be compelled to give evidence.
Legal Topics
['compellability of Witnesses' 'reluctant Witnesses' 'section 18 Evidence Act' 'witness Intimidation' 'balancing Exercise Under Evidence Act']
['criminal Law' 'evidence'] ['compellability of Witnesses' 'reluctant Witnesses' 'section 18 Evidence Act' 'witness Intimidation' 'balancing Exercise Under Evidence Act']

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Procedural Posture

Criminal / Procedural Ruling Prior to Trial

Legal Issues

  1. 1 ['Whether Jessica McNamara, as the daughter of an accused, should be compelled to give evidence for the prosecution under s. 18 of the Evidence Act 1995 (NSW).' 'Whether the likelihood and extent of harm to Ms McNamara or her relationship with her father outweighs the desirability of her giving evidence.']

Ratio Decidendi

The court found that requiring Ms McNamara to give evidence posed a significant likelihood of psychological harm to her and substantial harm to her relationship with her father. The gravity of the charges and the limited unique value of her evidence were outweighed by the severity of the likely harm. Thus, under s. 18(6) Evidence Act, she should not be compelled to give evidence.

Court Disposition

Objection upheld. Witness not to be compelled to give evidence.

Orders

  • ['The objection made under s. 18(2) of the Evidence Act 1995 (NSW) by Jessica McNamara is upheld.' 'Pursuant to s. 18(6) of the Evidence Act 1995 (NSW), Jessica McNamara must not be required to give evidence at the trial of Roger Caleb Rogerson and Glen Patrick McNamara.']